EXHIBIT 10.3
CONTRACT
FOR THE
CONSTRUCTION AND SALE
OF A
SEMI-SUBMERSIBLE DRILLING UNIT
(HULL NO. P.2004)
DATED
11 APRIL 2001
INDEX
ARTICLE SUBJECT PAGE
------- ------- ----
I DESCRIPTION AND CLASSIFICATION 1
II CONTRACT PRICE AND TERMS OF PAYMENT 4
III DELAYS IN PERFORMANCE 8
IV APPROVAL OF PLANS AND DRAWINGS AND
INSPECTION DURING CONSTRUCTION 9
V MODIFICATIONS 12
VI TESTS AND TRIALS 14
VII DELIVERY DATE AND DELIVERY 17
VIII FORCE MAJEURE DELAYS 22
IX OWNER FURNISHED EQUIPMENT DELAYS 23
X WARRANTY OF QUALITY 24
XI CANCELLATION BY BUYER 26
XII SUSPENSION BY BUYER 28
XIII BUYER'S DEFAULT 30
XIV BUILDER'S DEFAULT 32
XV LIABILITIES AND INDEMNITIES 34
XVI INSURANCE 36
XVII DISPUTE RESOLUTION 38
XVIII RIGHTS OF ASSIGNMENT AND VESSEL RECIPIENT
DESIGNATION 39
XIX TAXES AND DUTIES 40
XX PATENTS, TRADEMARKS, COPYRIGHTS, ETC. 40
XXI ADDRESSES 41
XXII NOTICES AND LANGUAGE 42
XXIII EFFECTIVE DATE OF CONTRACT 42
XXIV INTERPRETATION 42
XXV CONFLICT AND AUDIT 43
XXVI PUBLICITY RELEASES 45
EXHIBIT "A" CONTRACT SPECIFICATIONS
EXHIBIT "B" CONTRACT DRAWINGS LIST
EXHIBIT "C" HEALTH, SAFETY & ENVIRONMENTAL MANAGEMENT
SYSTEM REQUIREMENTS
EXHIBIT "D" SCHEDULE OF LABOR AND MATERIAL RATES
EXHIBIT "E" PROTOCOL OF DELIVERY AND ACCEPTANCE
EXHIBIT "F" PERFORMANCE GUARANTEE
EXHIBIT "G" IRREVOCABLE STAND-BY LETTER OF CREDIT
CONTRACT FOR THE CONSTRUCTION AND SALE OF
A SEMI-SUBMERSIBLE DRILLING UNIT
(HULL NO. P.2004)
THIS CONTRACT, made effective this 11th day of April, 2001 by and between PPL
Shipyard Pte. Ltd., a company organized and existing under the laws of
Singapore, having its principal place of business located at 00 Xxxxxx Xxxx,
Xxxxxxxxx 000000 (hereinafter called the "BUILDER") and Santa Fe International
Corporation, a corporation organized and existing under the laws of the Cayman
Islands, with an office at 0000 XXX Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
X.X.X. (hereinafter called the "BUYER" or "OWNER").
WITNESSETH:
WHEREAS, the BUILDER agrees to furnish all necessary labor and
materials to design, construct, equip, complete and test, at its nominated
shipyard located at Tanjong Xxxxx, Singapore (hereinafter called the "Shipyard")
and sell and deliver afloat at the Shipyard to the BUYER one (1) Xxxxxx and
Xxxxxxx Millennium ExD semi-submersible drilling unit more fully described in
Article I hereof (hereinafter called the "VESSEL); and
WHEREAS, the BUYER agrees to purchase and accept delivery of the VESSEL
at the Shipyard from the BUILDER and to pay for the same, all upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, undertaking to perform each party's responsibilities
and to exercise each party's rights with good faith in interpreting this
Contract and the Specifications, the parties hereby agree, in consideration of
the mutual promises and covenants hereinafter contained, as follows:
ARTICLE I - DESCRIPTION AND CLASSIFICATION
1. Description:
The VESSEL shall have the BUILDER's Hull No. P.2004 and shall be
designed, constructed, equipped and completed in accordance with the provisions
of (i) this Contract, and (ii) the Contract Specifications attached to this
Contract as Exhibit "A" and the Contract Drawings attached to this Contract as
listed in Exhibit "B" (herein collectively called the "Specifications") signed
by each of the parties hereto for identification on even date herewith and
incorporated by reference and made an integral part hereof.
2. Dimensions and Characteristics:
The VESSEL is a Xxxxxx and Xxxxxxx Millennium ExD semi-submersible
drilling unit which will bear BUILDER's Hull No. P.2004 of approximate
dimensions 98.82
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metres long, 78.68 metres wide and 36.0 metres in height from the keel to main
deck level. The details of the above particulars as well as the definitions and
method of measurements and calculations are as indicated in the Specifications.
3. Classification, Rules and Regulations:
The VESSEL (including its machinery, equipment and outfitting) shall to
the BUYER's reasonable satisfaction be constructed in accordance with good
shipbuilding practices and with the American Bureau of Shipping's, (herein
called the "Classification Society") Rules for Building and Classing Mobile
Offshore Drilling Units (the edition and amendments thereto being in force as of
the date of this Contract), the IMO MODU Code 1989, and other such specific
requirements as are set out in this Contract and the Specifications. Decisions
of the Classification Society as to compliance or non-compliance with the
Classification shall be final and binding upon both parties hereto.
The VESSEL shall also meet all requirements of the rules, regulations
and requirements of the International Loadline Convention and other regulatory
bodies as described in the Specifications in effect as of the date of this
Contract. All fees and charges incidental to the classification and with respect
to meeting the requirements of the above-referenced rules, regulations and
requirements, as well as design fees and/or royalties shall be for the account
of BUILDER.
The BUILDER shall perform its services pursuant to this Contract in
accordance with the HSEMS requirements set forth in Exhibit "C".
4. Registration:
The VESSEL shall be registered by the BUYER at its own cost and expense
under the laws of the Republic of Vanuatu with its home port at Port Vila, or
such other place as the BUYER shall designate at the time of its delivery and
acceptance hereunder. In addition, the BUYER reserves the right, at its sole
discretion, to register the VESSEL under construction at its own cost and
expense under the Laws of the Republic of Vanuatu or such other place as the
BUYER may deem appropriate, at any time following payment of the first
installment of the Contract Price.
5. Subcontracting:
The BUILDER may, with BUYER's written approval, which shall not be
unreasonably withheld, at its sole discretion and responsibility subcontract any
portion of the construction work of the VESSEL which is to be performed within
the Republic of Singapore. Subject to BUYER's written approval, the BUILDER may,
at its sole discretion and responsibility, subcontract any portion of the
construction work of the VESSEL which is to be performed outside the Republic of
Singapore. In any event, BUILDER shall retain full responsibility and liability
as if it did the work itself for any subcontracted work, including warranties,
guarantees and schedule.
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6. Permits and Observance of Applicable Laws:
BUILDER warrants that it is duly authorized with all applicable
licenses (including but not limited to those required in respect of the Xxxxxx
and Xxxxxxx Millennium ExD design) to construct, equip, complete, sell and
perform the entirety of the work covered hereby and to deliver the VESSEL as
provided for herein and that it will obtain in a timely manner all necessary
permits, licenses, and authorizations required for performing such work and
making such delivery. BUILDER further warrants that it and all of its
subcontractors will observe all applicable laws, orders, decrees, ordinances,
rules and regulations of the country of construction and of its subdivisions and
all duly constituted government agencies having jurisdiction.
7. Design Responsibilities
It is expressly agreed and understood that the BUILDER shall be
exclusively responsible for all aspects of the design and engineering required
in respect of the construction, equipment and completion of the VESSEL in
accordance with the provisions of this Contract and the Specifications. The
BUILDER shall accordingly be responsible for any additional costs and expenses
of construction, equipment and completion of the VESSEL beyond those originally
envisaged at the time of signature hereof which result from any deficiency or
shortcoming in the Xxxxxx and Xxxxxxx Millennium ExD design or any design or
engineering undertaken to develop the same for the purposes of performance of
this Contract.
It is further expressly agreed that the BUILDER shall be responsible
for delivering to the BUYER a semi-submersible vessel that has a variable deck
load of at least seven thousand (7,000) metric tonnes at the operating draft, a
variable deck load of at least seven thousand (7,000) metric tonnes at the
survival draft and a total payload of at least six thousand (6,000) metric
tonnes with 0.4 meters freeboard on the pontoons at the transit draft, all as
defined in Section 2.5 of the Specifications. If, after VESSEL inclining, the
weight and center of gravity are such that these figures are not achievable, the
BUILDER shall make whatever modifications to the VESSEL are necessary to provide
the completed VESSEL with these variable deck load and transit payload figures.
Such modifications could include the addition of faired sponsons to the pontoons
and/or the stability columns.
However the variable loads required in the preceding paragraph may be
reduced if any of the following conditions are met:
o An item of Owner Furnished Equipment (OFE) is found to be
heavier than the weight contained in the OFE list included in
the Contract Specifications.
o The weight of the Well Activity Centre(TM) (WAC(TM)) as
designed by Hydralift is greater than weight of the WAC(TM)
calculated by Xxxxxx & Xxxxxxx.
o The review of the global structural analysis by ABS requires
additional steel to be incorporated into the design (note any
such additional steel will have no impact on the Contract
Price).
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The reduction in Payload at the transit draft shall be equal to the
increase in weight brought about by any of the above. The reduction in variable
deck load at operating and survival drafts shall be the amount of payload at one
meter above the maindeck that must be replaced by ballast water at the mid depth
of the pontoon in order to maintain the vertical center of gravity of the VESSEL
on the required KG curve as a result of the increase in weight brought about by
any of the above.
Further, the environmental ratings contained in Section 1.5 of the
Specifications may be amended by official letter from ABS following their
detailed review of the design. Such amendments, if any, will be deemed to be
retroactively incorporated into Section 1.5 of the Specifications.
8. Notwithstanding any other provision of this Contract, specifically
including but not limited to the Effective Date as defined in Article XXIII,
BUILDER shall not commence construction of the VESSEL under this Contract prior
to 12 November 2002 (the "Construction Commencement Date").
ARTICLE II - CONTRACT PRICE AND TERMS OF PAYMENT
1. Contract Price:
The contract price of the VESSEL is Eighty-Six Million One Hundred
Eighty Thousand United States Dollars (U.S.$86,180,000), receivable by the
BUILDER (herein called the "Contract Price"), subject to upward or downward
adjustment, if any, as set forth in this Contract.
2. Currency:
Any and all payments required to be made by either party under this
Contract shall be made in United States Dollars. Payments required to be made by
BUYER to BUILDER shall be made as follows:
Citibank N.A., New York
` For Account Citibank N.A., Singapore
Favoring: PPL Shipyard Pte. Ltd.
USD Account Number: 0-000000-000
3. Terms of Payment:
The Contract Price shall be paid by the BUYER to the BUILDER in
installments as follows:
(a) 1st Installment:
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The sum of Eight Million Six Hundred Eighteen Thousand United States
Dollars (U.S.$8,618,000), equivalent to ten percent (10%) of the
Contract Price shall be paid upon the second banking day next following
the Construction Commencement Date or BUILDER's delivery of the
irrevocable standby letter of credit to the BUYER as required under
Article XI, Paragraph 2, whichever occurs later.
(b) 2nd Installment:
The sum of Twelve Million Nine Hundred Twenty-Seven Thousand United
States Dollars (U.S.$12,927,000), equivalent to fifteen percent (15%)
of the Contract Price shall be paid upon the second banking day next
following the completion of the detailed engineering of the VESSEL,
which shall be deemed to require completion of specific, yet to be
mutually agreed, tasks.
(c) 3rd Installment
The sum of Eight Million Six Hundred Eighteen Thousand United States
Dollars (U.S.$8,618,000), equivalent to ten percent (10%) of the
Contract Price shall be paid upon the second banking day next following
completion of the fabrication of steel for the pontoons, columns and
upper hull of the VESSEL, which shall be deemed to require completion
of specific, yet to be mutually agreed, tasks.
(d) 4th Installment
The sum of Eight Million Six Hundred Eighteen Thousand United States
Dollars (U.S.$8,618,000), equivalent to ten percent (10%) of the
Contract Price shall be paid upon the second banking day next following
the mechanical completion of the Well Activity Center of the VESSEL,
which shall be deemed to require completion of specific, yet to be
mutually agreed, tasks.
(e) 5th Installment
The sum of Eight Million Six Hundred Eighteen Thousand United States
Dollars (U.S.$8,618,000), equivalent to ten percent (10%) of the
Contract Price shall be paid upon the second banking day next following
the mechanical completion of the pontoons, columns and upper hull of
the VESSEL, which shall be deemed to require completion of specific,
yet to be mutually agreed, tasks.
(f) 6th Installment
The sum of Eight Million Six Hundred Eighteen Thousand United States
Dollars (U.S.$8,618,000), equivalent to ten percent (10%) of the
Contract Price, shall be paid upon the second banking day next
following completion of the power generation system of the VESSEL,
which shall be deemed to require completion of specific, yet to be
mutually agreed, tasks.
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(g) 7th Installment
The sum of Twelve Million Nine Hundred Twenty-Seven Thousand United
States Dollars (U.S.$12,927,000), equivalent to fifteen percent (15%)
of the Contract Price, shall be paid upon the second banking day next
following completion of the commissioning of the Well Activity Center
of the VESSEL, which shall be deemed to require completion of specific,
yet to be mutually agreed, tasks.
(h) 8th Installment
The sum of Eight Million Six Hundred Eighteen Thousand United States
Dollars (U.S.$8,618,000), equivalent to ten percent (10%) of the
Contract Price, shall be paid upon the second banking day next
following completion of the hotel facilities of the VESSEL, which shall
be deemed to require completion of specific, yet to be mutually agreed,
tasks.
(i) 9th Installment
The sum of Eight Million Six Hundred Eighteen Thousand United States
Dollars (U.S.$8,618,000), equivalent to ten percent (10%) of the
Contract Price, plus any increase or minus any decrease due to
adjustments of the Contract Price hereunder, shall be paid upon the
second banking day next following completion of all trials and
punchlists, issuance of all classification documents and completion of
all tasks necessary to make the VESSEL ready for ocean or dry tow,
which shall be deemed to require completion of specific, yet to be
mutually agreed, tasks,
and execution by the parties of the PROTOCOL OF DELIVERY AND ACCEPTANCE
pursuant to Article VII (2) hereof.
For purposes of implementing each of the above-described payment
milestone events, they shall not be deemed to have been attained until such time
as all tasks and activities that precede such milestone as described on the
BUILDER's Construction Schedule have been fully completed.
Notwithstanding the foregoing, XXXXX's obligation to make payment of
the second (2nd) and subsequent installments shall be subject to the parties
having reached written agreement on the detailed tasks and activities to be
completed in association with each of the remaining installment payments. Such
tasks and activities shall relate to BUYER's approved version of the BUILDER's
Construction Schedule.
As used herein, the term "banking day" shall mean any day in which
commercial banks are open for business in Texas or New York and Singapore.
At least two (2) banking days in advance of the due date of each
installment payment, BUILDER shall give both the BUYER and the BUYER's
Representative written notice by facsimile or registered mail. Each installment
notice shall state: (i)
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the stage of work achieved as defined by the BUILDER's Construction Schedule as
defined in Article IV, Paragraph 1(c); (ii) that the work completed complies
with the Plans, Specifications and this Contract; and (iii) that there are no
liens or claims upon the VESSEL. Each installment notice shall be executed by an
officer of the BUILDER. If BUILDER has any outstanding liens on the VESSEL,
BUYER shall not be obligated to make such payments until the liens are resolved.
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ARTICLE III - DELAYS IN PERFORMANCE
1. Delivery:
(a) If any delay in construction of the VESSEL, excepting only Permissible
Delays, should continue for a period of one hundred eighty (180)
calendar days during construction (as determined by reference to the
BUILDER's Construction Schedule defined in Article IV, Paragraph 1(c)),
then in such event, the BUYER may at its option cancel this Contract at
any time thereafter in accordance with the provisions of Article XI
hereof. The BUILDER may, at any time after the expiration of the
aforementioned one hundred eighty (180) calendar days of delay during
construction, if the BUYER has not served notice of cancellation as
provided in Article XI hereof, demand in writing that the BUYER shall
make an election, in which case the BUYER shall, within thirty (30)
calendar days after such demand is delivered to the BUYER, notify the
BUILDER of its intention either to cancel this Contract or to consent
to the acceptance of the VESSEL at an agreed future date; it being
understood by the parties hereto that, if the VESSEL is not delivered
by such future date or if construction is again delayed for one hundred
eighty (180) calendar days or more (as determined by reference to the
BUILDER's Construction Schedule defined at Article IV, Paragraph 1(c)),
the BUYER shall have the same right of cancellation upon the same terms
and conditions as hereinabove provided.
(b) If the VESSEL is not delivered by the thirty-first (31st) calendar day
after the Delivery Date (as such term is defined in Article VII,
Paragraph 1(a)) for any reason, excepting only force majeure delays (as
defined in Article VIII) and Permissible Delays as defined in Paragraph
2, below, then in such event, the BUYER may at its option cancel this
Contract at any time thereafter in accordance with the provisions of
Article XI hereof.
(c) If delivery of the VESSEL is delayed more than thirty-one (31) calendar
days after the Delivery Date as defined in Article VII below, then, in
such event, beginning at twelve o'clock midnight of the thirty-first
(31st) calendar day after the Delivery Date, the amount otherwise due
as the final installment shall be reduced by deducting therefrom the
sum of Seventy-Five Thousand United States Dollars (U.S.$ 75,000) per
calendar day, provided that the amount of such reduction shall not
exceed five percent (5%) of the Contract Price, including any change
orders. In the event the amount of reduction as aforesaid exceeds the
sum due as the final installment, the excess portion shall be paid to
BUYER by BUILDER on the actual delivery date of the VESSEL by BUILDER
to BUYER (it being understood by both parties that any such reduction
of payment by BUYER is by way of liquidated damages and not by way of
penalty).
2. Definition of Permissible Delay:
Only such delays as are specifically defined in Article V, Paragraphs
1, 2 and 3, Article VI, Paragraph 2, Article IX, Article XII, Paragraph 2, and
Article XIII, Paragraph 1
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of this Contract shall be "Permissible Delays". Notwithstanding any provision to
the contrary in this Contract, if any Permissible Delay would not have come
about but for the prolongation of the work of construction due to any previous
unauthorized delays (or accumulation thereof), then the latter delay shall not
be deemed to be a Permissible Delay.
3. Effect of Cancellation:
It is expressly understood and agreed by the parties hereto that in any
case, if the BUYER cancels this Contract under this Article, the BUYER shall not
be entitled to any liquidated damages.
ARTICLE IV - APPROVAL OF PLANS AND DRAWINGS
AND INSPECTION DURING CONSTRUCTION
1. Approval of Plans, Drawings and BUILDER's Construction Schedule:
(a) The BUILDER shall submit to either the BUYER or its Representative (as
defined in Article IV, Paragraph 2) four (4) copies each of the plans
and drawings for BUYER's approval. The BUILDER shall simultaneously
submit to the Classification Society and other applicable agencies the
plans and drawings which require their approval. The BUYER or its
Representative shall, within ten (10) working days after receipt
thereof, return to the BUILDER one (1) copy of such plans and drawings
with the BUYER's approval or comments, if any, written thereon. If
comments are received the BUILDER shall modify the plans and drawings
in accordance with the BUYER's comments and resubmit same to the BUYER.
Final approval or additional comments for such revised plans or
drawings must be given within ten (10) working days after receipt by
the BUYER or its Representative of the BUILDER's revised plans and
drawings. A list of the plans and drawings to be submitted to the BUYER
or its Representative by BUILDER, as aforesaid, and a schedule for
submission of plans and drawings to BUYER for approval shall be
mutually agreed upon between the parties hereto within thirty (30)
calendar days of the Construction Commencement Date.
(b) When and if the BUYER's Representative shall have arrived at the
Shipyard in accordance with Paragraph 2 of this Article, the BUILDER
may submit the remainder, if any, of the plans and drawings in the
agreed list in accordance with the agreed schedule, to the
Representative for his approval upon mutual written agreement between
the parties hereto. The Representative shall, within ten (10) working
days after receipt thereof, return to the BUILDER one (1) copy of such
plans and drawings with his approval or comments, if any, written
thereon. Approval by the Representative of the plans and drawings duly
submitted to him shall be deemed to be approved by the BUYER for all
purposes of this Contract.
(c) The BUILDER shall, within thirty (30) calendar days after the
Construction Commencement Date, furnish the BUYER or the Representative
a detailed key
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event construction schedule showing planned construction progress of
the VESSEL. After approval of the construction schedule by the BUYER or
the Representative within ten (10) working days after receipt thereof,
the construction schedule (herein called either the "BUILDER's
Construction Schedule" or the "Production Construction Schedule") shall
be the basis of interpretation of actual construction progress of the
VESSEL. The Construction Schedule may be amended by mutual written
agreement by BUILDER and XXXXX.
(d) BUYER's approval as aforesaid shall not serve to eliminate or reduce
the obligations of the BUILDER elsewhere contained in this Contract.
2. Appointment of BUYER's Representative:
The BUYER may send to and maintain at the Shipyard, at the BUYER's own
cost and expense, a representative (herein called the "Representative"). BUYER
shall provide BUILDER with a separate written authorization describing the scope
of authority of such Representative to act on behalf of the BUYER in connection
with this Contract. The Representative and his assistant(s) shall at all times
be deemed to be employees of the BUYER and not of the BUILDER.
3. Inspection by Representative:
The necessary inspection of the VESSEL shall be carried out by the
BUYER's Representative, the Classification Society, other regulatory bodies and
the inspection team of the BUILDER throughout the entire period of construction,
in order to ensure that construction of the VESSEL is duly performed in
accordance with this Contract and the Specifications. During construction of the
VESSEL the Representative shall have the right to inspect all work in process,
wherever in the BUILDER's facilities, or any of BUILDER's subcontractors'
facilities, and to attend all tests and inspections of the VESSEL. The BUILDER's
quality inspection organization shall not report directly to BUILDER's
engineering or production organizations, and shall have a direct line of
responsibility to BUILDER's executive management.
The BUILDER shall give notice to the Representative at least one
working day (24 hours) in advance of the date and place of such tests and
inspections to be attended by him. Failure of the Representative to be present
at such tests and inspections, without justifiable reason, after due notice to
him as above provided shall be deemed to be a waiver of his right to be present.
In such case, the BUYER shall be obligated to accept the results of such tests
or inspections on the basis of the BUILDER's certificate, subject to any
required approval of the Classification Society. Notwithstanding any provision
to the contrary in this Contract, the presence or absence of BUYER's
Representative from any such tests or inspections shall not serve to eliminate
or reduce the obligations of the BUILDER elsewhere contained in this Contract.
In the event that the Representative discovers any construction or
material or workmanship which is not deemed to conform to the requirements of
this Contract
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and/or the Specifications, the Representative shall promptly give the BUILDER
notice in accordance with Article XXII as to such nonconformity. Upon receipt of
such notice from the Representative, the BUILDER shall promptly correct such
nonconformity. In all working hours during the construction of the VESSEL until
delivery thereof, the Representative and his assistants shall be given free and
ready access to the VESSEL, its equipment and accessories, and to any other
place where work is being done or materials are being processed or stored in
connection with the construction of the VESSEL, including the yards, workshops,
stores and offices of the BUILDER, and the premises of subcontractors of the
BUILDER who are doing work or storing materials in connection with the VESSEL's
construction.
If the BUILDER's Quality Assurance and Quality Control is found to miss
a number of major discrepancies during the construction, the BUYER may as it may
deem appropriate supplement the Quality Control coverage by contracting for an
independent service. BUILDER shall be obligated to pay for all costs for the
third party services and shall make necessary corrections or repairs to the
construction for discrepancies discovered by the independent third party as if
the discrepancies were found by BUILDER's own Quality Assurance and Quality
Control organization.
4. Facilities:
The BUILDER shall furnish, at BUILDER's expense and free of charge to
BUYER, the Representative and his assistant(s) with adequate office space and
such other reasonable facilities according to the Specifications in the Shipyard
as may be necessary to enable them to effectively carry out their duties.
5. Responsibility of BUYER:
The BUYER's Representative shall carry out his duties hereunder in
accordance with good shipbuilding practice and in such a way as to avoid any
unnecessary increase in building cost or delay in the BUILDER's Construction
Schedule.
The BUYER has the right to request that BUILDER replace any employee or
subcontractor who is deemed unsuitable and unsatisfactory for the proper
progress of the VESSEL's construction. The BUILDER shall promptly effect such
replacement.
6. Key Personnel:
All Key Personnel of BUILDER who are assigned to the design,
procurement and construction of the VESSEL shall have experience on BUILDER'S
prior new build drilling units, or they shall have prior construction experience
on similar drilling units. In addition BUILDER agrees not to replace previously
accepted Key Personnel without the prior written consent of BUYER, which will
not be unreasonably withheld. Key Personnel shall be defined as engineering and
supervisory personnel of the level of xxxxxxx and above.
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ARTICLE V - MODIFICATIONS
1. Modification of Specifications:
Within thirty-four (34) calendar days of the Construction Commencement
Date, the Specifications may be modified and/or changed by BUYER as respects
machinery arrangements and/or systems installations without altering the
Contract Price or the Delivery Date if such modifications or changes do not
necessitate structural changes.
The Specifications may also be otherwise modified and/or changed at any
time by written agreement of the parties hereto, provided, that the BUYER and
the BUILDER shall first agree to alterations in the Contract Price and the
Delivery Date, if any, occasioned by or resulting from such modifications and/or
changes. Any such alterations in the Delivery Date as may be mutually agreed in
writing shall be understood to be Permissible Delays as contemplated by Article
III, Paragraph 2. In the event the parties are unable to agree upon such
alteration, if any, to the Contract Price or the Delivery Date, BUILDER shall
proceed with such modification or change and any area of disagreement that
cannot subsequently be resolved between BUILDER and BUYER shall be resolved in
accordance with Paragraph 4 of this Article. Within fifteen (15) calendar days
of BUYER's notification to BUILDER to proceed with modifications or changes to
the Specifications, BUILDER shall notify BUYER in writing of any such
modifications or changes that will have an impact on the Contract Price and/or
the Delivery Date or which otherwise would require issuance of a Change Order to
this Contract, including complete details of the nature of such impact. Failure
of BUILDER to so notify BUYER shall be deemed a waiver of BUILDER's right to
subsequently claim for any change in the Contract Price or the Delivery Date or
issuance of any Change Order associated with such modifications or changes.
Such agreement shall be effected by exchange of letters signed by the
authorized representatives of the parties hereto, which shall constitute
amendments to this Contract and/or Specifications.
The BUILDER may make minor changes to the Specifications, if found
necessary for introduction of improved production methods or otherwise, provided
that the BUILDER shall first obtain the BUYER's written approval thereof.
2. Change in Class, etc.:
In the event that, after the Construction Commencement Date of the
first Millennium ExD semi-submersible drilling unit to be constructed by BUILDER
for BUYER, any requirements as to Class, or as to rules and regulations to which
the construction of the VESSEL is required to conform are altered or changed by
the Classification Society or other regulatory bodies authorized to make such
alterations or changes, then either of the parties hereto, upon receipt of such
information from the Classification Society or such other regulatory bodies,
shall promptly transmit the same to the other in writing, and the BUILDER shall
thereupon incorporate such alterations or changes into the construction of the
VESSEL. Any alterations in the Delivery Date as
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may be mutually agreed in writing as a result of such changes shall be
understood to be Permissible Delays as contemplated by Article III, Paragraph 2.
However, in the event the parties are unable to agree upon any adjustment to the
Contract Price or the Delivery Date, BUILDER shall proceed with such alterations
and/or changes, as aforesaid, and any area of disagreement that cannot
subsequently be resolved between BUYER and BUILDER shall be resolved in
accordance with Paragraph 4 of this Article.
3. Changes and/or Modifications on a Time and Material Basis:
In the event the parties agree in writing that any changes,
modifications or alterations are to result in an adjustment of the Contract
Price on a time and materials basis, the labor and material rates applicable
thereto shall be as specified in Exhibit "D" and any change in schedule as may
be agreed in writing shall be understood to constitute Permissible Delays as
contemplated in Article III, Paragraph 2.
Documentation of Reimbursable Costs:
The following documentation for reimbursable costs is required to be
submitted with all invoices:
1. All labor charges must be supported by original time sheets
submitted with BUILDER's invoice.
2. The time sheet shall include at a minimum the following
information: date Work was performed; name of employee; hours
worked; pay classification of worker; and work order number or
other reference to the specific work performed on BUYER's
behalf.
3. Original time sheet shall be signed by a field representative
of BUYER. Time sheets without field approval shall be subject
to non-reimbursement by XXXXX, at XXXXX's discretion.
4. Materials purchased from third parties shall be supported by
the original third party invoice.
5. Invoice shall have a copy of the check on which the payment
was made, or a reference to the check number or other
identifying reference if paid by another method, such as wire
transfer.
6. Amounts reimbursed shall be net of any discounts or rebates
received by BUILDER.
7. Invoices for items purchased from companies affiliated with
BUILDER shall be so identified.
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8. Unit prices shall be supported by quantity reports signed by
BUYER's representative indicating the units (quantity) or Work
performed/provided to which the unit prices apply.
4. Disputes Concerning Changes or Modifications:
In the event BUYER desires to implement any modifications, changes or
alterations as contemplated under Paragraphs 1, 2 or 3 of this Article and the
parties are unable to agree upon the adjustment in the Contract Price and/or
Delivery Date, if any, BUYER may elect to instruct BUILDER in writing to proceed
with such modifications, changes or alterations and the BUILDER shall promptly
comply with such instruction. In connection with change orders as to which the
parties are unable to agree, BUYER shall have the right to audit at its expense,
either by representative confirmation or original documents, such as time and
material records, or by independent public accountant (or both) all of BUILDER's
records in connection with charges and process of construction. The
determination of the adjustment in the Contract Price and/or Delivery Date
associated with any such alterations and changes which are performed shall, as
respects the areas of disagreement between the parties, be submitted for final
resolution in accordance with Article XVII hereof. Without prejudice to
Paragraph 1, above, in the event BUILDER and BUYER have not reached agreement by
the Delivery Date upon the adjustment in the Contract Price then any disputed
amount(s) shall be deposited by BUYER in a mutually agreed joint interest
bearing account for BUYER and BUILDER until resolution of such disputed
amount(s). Interest on the principal amount shall be distributed between the
parties in proportion to the amount of principal received upon resolution of the
dispute(s).
5. Substitution of Materials:
In the event that any of the materials required by the Specifications
or otherwise under this Contract for the construction of the VESSEL cannot be
procured in time to maintain the Delivery Date of the VESSEL, the BUILDER may,
provided that the BUYER so agrees in writing, supply other materials capable of
meeting the requirements of the Classification Society and of the rules,
regulations and requirements with which the construction of the VESSEL must
comply. Any agreement as to such substitution of materials shall be effected in
the manner provided in Paragraph 1 of this Article, and may, likewise, include
alterations in the Contract Price and other terms and conditions of this
Contract occasioned by or resulting from such substitution.
ARTICLE VI - TESTS AND TRIALS
1. Notices:
The BUILDER shall provide the BUYER at least thirty (30) days prior
notice in accordance with Article XXII of the time and place of each of the sea
trials, equipment trials, and other specified commissioning which is to be
performed at BUILDER's
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Shipyard (collectively herein referred to as the "Tests and Trials") of the
VESSEL, and the BUYER shall promptly acknowledge receipt of such notice(s). The
BUYER shall have its Representative on board the VESSEL to witness such Tests
and Trials. Failure by the Representative of the BUYER to attend any portion of
the Tests and Trials of the VESSEL after due notice to the BUYER as provided
above shall be deemed to be a waiver by the BUYER of its right to have its
Representative on board the VESSEL at such portion of the Tests and Trials, and
the BUILDER may conduct such portion of the Tests and Trials without the
Representative of the BUYER being present, and in such case the BUYER shall be
obligated to accept the VESSEL on the basis of certificates of the BUILDER and
the Classification Society Surveyor that the VESSEL, upon completion of such
portion of the Tests and Trials, is found to conform to this Contract and the
Specifications with respect to such portion of the Tests and Trials.
2. Weather Conditions:
The Tests and Trials shall be carried out under weather conditions
deemed favorable enough in the judgment of the Classification Society Surveyor.
In the event of unfavorable weather on the date(s) specified for the Tests and
Trials, the same shall take place on the first available day thereafter that
weather conditions permit. It is agreed that if during the Tests and Trials of
the VESSEL, the weather should suddenly become so unfavorable that orderly
conduct of the Tests and Trials can no longer be continued in the opinion of the
Classification Society Surveyor, the Tests and Trials shall be discontinued and
postponed until the first favorable weather condition day next following, unless
the BUYER agrees in writing to accept the VESSEL on the basis of the Tests and
Trials already made before such discontinuance occurred.
Any delay of the Tests and Trials caused by such unfavorable weather
conditions shall operate to postpone the Delivery Date by the period of delay
involved and such delay shall be understood to constitute Permissible Delays as
contemplated in Article III, Paragraph 2.
3. How Conducted:
All expenses in connection with the Tests and Trials, including, but
not limited to fuel oil, lubricating oils and greases (the quality and quantity
of which shall be in accordance with applicable engine specifications) shall be
for the account of the BUILDER, and the BUILDER shall provide at its own expense
the necessary crew to comply with conditions of safe navigation. The Tests and
Trials shall be conducted in the manner prescribed in the Specifications, and
shall prove fulfillment of the performance requirements for the Tests and Trials
as set forth in the Specifications. The course of Tests and Trials shall be
determined by the BUILDER.
4. Method of Acceptance or Rejection:
(a) Upon completion of the Tests and Trials, the BUILDER shall give the
BUYER notice in accordance with Article XXII of completion of the Tests
and Trials, as and if the BUILDER considers that the results of the
Tests and Trials indicate
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conformity of the VESSEL to this Contract and the Specifications in all
respects. The BUYER shall, within three (3) business days after receipt
of such notice from the BUILDER, notify the BUILDER in accordance with
Article XXII of its acceptance or rejection of the VESSEL.
(b) However, should the results of the Tests and Trials indicate that the
VESSEL, or any part or equipment thereof, does not fully conform to the
requirements of this Contract and/or the Specifications, then the
BUILDER shall promptly take the necessary steps to correct such
nonconformity. Upon completion of correction of such nonconformity, the
BUYER may request a second round of Tests and Trials to test the
nonconformity correction, and in such event the BUILDER shall give the
BUYER not less than three (3) business days prior notice in accordance
with Article XXII of the second round of Tests and Trials of the
VESSEL. Upon successful completion of the second round of Tests and
Trials, the BUYER shall within three (3) business days after receipt of
such notice from the BUILDER, notify the BUILDER in accordance with
Article XXII of its acceptance or rejection of the VESSEL. Any
additional cost for fuel, oils and greases required for the second, or
subsequent, round of Tests and Trials shall be for BUILDER's account.
(c) In the event that the BUYER rejects the VESSEL, the BUYER shall
indicate in its notice of rejection in what respect the VESSEL, or any
part or equipment thereof, does not conform to this Contract and/or the
Specifications.
(d) The BUILDER may dispute the rejection of the VESSEL by the BUYER under
this Paragraph, in which case the matter shall be submitted for final
resolution in accordance with Article XVII hereof.
5. Effect of Acceptance:
Acceptance of the VESSEL as provided above shall be final and binding
and shall preclude the BUYER from refusing tender of delivery of the VESSEL as
hereinafter provided, if the BUILDER complies with all procedural requirements
for delivery as provided in Article VII hereof.
6. Disposition of Surplus Consumable Stores:
Should any consumable stores furnished by the BUILDER for the Tests and
Trials remain on board the VESSEL at the time of acceptance thereof by the
BUYER, the BUYER agrees to buy the same from the BUILDER at the original
documented purchase price thereof, and payment by the BUYER shall be effected
within thirty (30) days of receipt from BUILDER of an invoice and supporting
documentation therefore.
7. Installation and Commissioning of OWNER Furnished Equipment:
The BUILDER is required to deliver to the BUYER a complete fully
functioning drilling unit that meets all of the provisions of this Contract and
the Specifications. All equipment shall be installed in the VESSEL and fully
commissioned and tested by the
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BUILDER according to the requirements of this Contract, the Specifications and
the manufacturers of all of the OFE and the BUILDER Furnished Equipment ("BFE").
The OFE and BFE shall be installed by the BUILDER no later than the times called
for in the Construction Schedule. The Construction Schedule shall be agreed
between the BUILDER and the BUYER as called for in the Contract and shall be
structured such that there is sufficient time after installation of all
equipment for hook up, commissioning and testing. The BUILDER shall be
responsible for arranging and conducting all hook up, commissioning and testing
activities. Notwithstanding the provisions of this Paragraph, it is recognized
that the BUYER has specific responsibility for the following:
o To arrange for and pay for the attendance during hook up,
commissioning and testing activities of the appropriate
manufacturers representatives.
o To work with the BUILDER during the development of the
commissioning and testing plan and schedule.
o To provide on site resources during hook up, testing and
commissioning activities to assist the BUILDER particularly
with equipment with which he is not familiar.
It is also specifically recognized that non-performance of OFE after it
has been properly installed and tested according to the manufacturers
recommendations and the agreed Construction Schedule shall not be grounds for
the assertion by the BUYER of default by the BUILDER.
ARTICLE VII - DELIVERY DATE AND DELIVERY
1. Time and Place:
(a) Delivery Date and Place:
The VESSEL shall be delivered by the BUILDER to the BUYER safely afloat
secured alongside the wharf at BUILDER's Shipyard or another mutually
agreed location ready for ocean tow or loadout for dry tow as approved
by the BUYER's underwriters' surveyors following completion of the
procedures addressing Tests and Trials in Article VI on or before 11
November 2004 provided, however, that in the event of Permissible
Delays as contemplated by Article III, Paragraph 2, or delays due to
force majeure (as defined in Article VIII), the aforementioned date for
delivery of the VESSEL shall be postponed accordingly. The
aforementioned date, or such later date to which the requirement of
delivery is postponed pursuant to such terms, is herein called the
"Delivery Date". Notwithstanding the foregoing, BUYER shall not be
obligated to accept delivery of the VESSEL more than fifteen (15)
calendar days prior to the Delivery Date unless otherwise mutually
agreed in writing.
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At the BUYER's option, the BUILDER shall remove and safely seafasten on
the VESSEL's main deck, all eight (8) of the VESSEL's DP thrusters in
preparation for the ocean tow or loadout for dry tow as approved by the
BUYER's underwriters' surveyor. If the BUYER exercises such option, the
Contract Price shall be increased by Two Hundred and Fifty Thousand
United States Dollars (U.S.$250,000).
(b) Actual Delivery Date:
The actual delivery date shall mean the date on which the BUILDER shall
have actually delivered the VESSEL to the BUYER. However, the date on
which the BUILDER shall have duly tendered the VESSEL for delivery in
case of the BUYER's default as provided in Paragraph 1(c) of Article
XIII, shall be substituted for the actual delivery date, if applicable.
2. When and How Effected:
Provided that the BUYER shall have fulfilled all of its obligations
stipulated under this Contract, delivery of the VESSEL shall be effected
forthwith by the concurrent execution by each of the parties hereto of the
PROTOCOL OF DELIVERY AND ACCEPTANCE in the form attached hereto as Exhibit "E",
acknowledging delivery of the VESSEL by the BUILDER and acceptance thereof by
the BUYER. Notwithstanding any provision in this Contract, it is agreed and
understood that the VESSEL shall be delivered to BUYER when completed and
accepted by BUYER regardless of the existence of any pending disagreement,
dispute or proceeding, provided that BUYER shall have paid to BUILDER all
undisputed installments due prior to or upon delivery and BUYER shall deposit
any disputed portion of the Contract Price into a joint account as contemplated
in Article V, Paragraph 4, prior to or upon delivery.
3. Documents to be Delivered to BUYER:
Upon delivery and acceptance of the VESSEL, the BUILDER shall deliver
to the BUYER all necessary documents, including but not limited to those listed
below, which shall accompany the PROTOCOL OF DELIVERY AND ACCEPTANCE:
(a) PROTOCOL OF TESTS AND TRIALS of the VESSEL made pursuant to the
Specifications.
(b) PROTOCOL OF INVENTORY of the equipment of the VESSEL, including spare
parts and the like, all as specified in the Specifications.
(c) PROTOCOL OF STORES OF CONSUMABLE NATURE referred to under Paragraph 6
of Article VI hereof, including the original purchase price thereof.
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(d) ALL CERTIFICATES, including the BUILDER's CERTIFICATE, required to be
furnished upon delivery of the VESSEL pursuant to this Contract and the
Specifications. It is agreed that if, through no fault on the part of
the BUILDER, the classification certificate and/or other certificates
are not available at the time of delivery of the VESSEL, provisional
certificates shall be accepted by the BUYER, provided that the BUILDER
shall either furnish or procure the delivery to the BUYER of the formal
certificates as promptly as possible after such formal certificates
have been issued.
(e) DOCUMENTS OF ASSIGNMENT, accompanied by original documents of all
guarantees and warranties from contractors, subcontractors, vendors,
suppliers, manufacturers and dealers for all equipment, material and
appurtenances supplied and installed by the BUILDER.
(f) DECLARATION OF WARRANTY of the BUILDER that the VESSEL is delivered to
the BUYER free and clear of any liens, charges, rights in rem, claims,
mortgages, or other encumbrances upon the BUYER's title thereto, and in
particular, that the VESSEL is absolutely free of all liabilities and
burdens of any nature, including those which may be related to imposts,
taxes or charges imposed by governmental authorities of the country of
construction, as well as of all liabilities of the BUILDER to its
contractors, subcontractors, employees and crew, and of all liabilities
arising from the operation of the VESSEL in Sea Trials, or otherwise,
prior to delivery.
(g) DRAWINGS AND PLANS pertaining to the VESSEL as stipulated in the
Specifications, including all plans, specifications, working drawings,
technical descriptions, calculations, test results and other data, and
all other such information and documents concerning the design,
engineering and construction of the VESSEL.
(h) COMMERCIAL INVOICE AND BILL OF SALE.
4. Tender of VESSEL:
If the BUYER fails to take delivery of the VESSEL after completion
thereof according to this Contract and the Specifications without any
justifiable reason, the BUILDER shall have the right to tender the VESSEL for
delivery after compliance with all procedural requirements as provided above.
5. Title, Retention of Title and Risk:
(a) Following payment of the first installment of the Contract Price:
(i) the VESSEL and all parts thereof as it is from time to time
constructed; including
(ii) all appurtenances and components and any other materials and
articles, including but not limited to machinery, equipment,
gear, engines and outfit
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(hereinafter collectively referred to as "Appurtenances and
Components") whether wholly or partially finished or
unfinished from time to time appropriated or used or intended
to be appropriated or used in the construction of the VESSEL
or ready to be so appropriated whether within the premises of
the BUILDER or any subcontractor or elsewhere and whether or
not marked and set aside pursuant to Sub-paragraph (b), below
shall forthwith become and remain the absolute property of the BUYER
and shall not be removed from the Shipyard without the written consent
of the BUYER or its Representative which consent shall not unreasonably
be withheld. Provided, however, that except as specifically set forth
in Article XI, Paragraph 3, Owner Furnished Equipment shall at all
times be and remain the absolute property of the BUYER.
(b) The intention of the BUILDER to transfer the property in the VESSEL
including any Appurtenances and Components to the BUYER in accordance
with this Sub-paragraph shall be evidenced by the BUILDER taking or
causing the supplier of the goods or materials to take any of the
following actions:
(i) Upon such Appurtenances and Components being substantially
ready for delivery to the Shipyard, suitably marking with the
VESSEL's yard number or otherwise plainly identifying or
permitting the BUYER or its Representative to suitably so mark
or plainly identify such Appurtenances and Components so as to
show that (A) their destination is the Shipyard, and (B) that
they are the property of the BUYER and (C) (where they are not
stored at the Shipyard or premises of the BUILDER) to whose
order they are held; or
(ii) setting aside and storing such Appurtenances and Components so
marked or identified to the satisfaction of the BUYER; or
(iii) sending the BUYER or its Representative a schedule listing and
giving the value of every item of the Appurtenances and
Components so set aside and stored; or
(iv) inviting the Buyer to inspect the Appurtenances and
Components.
(c) The BUILDER hereby represents and warrants that there shall not be any
retention of title clauses in force and applying to any Appurtenances
and Components provided by the BUILDER and shall use its best efforts
to ensure the same for any Appurtenances and Components provided by any
subcontractor or any other person for incorporation into the VESSEL.
The BUILDER shall promptly (but in any event within two (2) calendar
days) notify the BUYER's Representative in writing in the event that
more than Two Hundred Fifty Thousand United States Dollars (U.S.$
250,000) of Appurtenances and Components under this Contract are
subject to retention of title clauses at any point in time prior to the
Delivery Date.
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(d) Neither the BUILDER nor any subcontractor nor any other person shall
have a lien on any part of the VESSEL, including its Appurtenances and
Components, which have vested in the BUYER under Article VII, Paragraph
5, or otherwise under this Contract, or on OWNER Furnished Equipment,
for any sum due to the BUILDER, subcontractor or any other person and
the BUILDER shall take all such steps as may be necessary to ensure
that the title of the BUYER and the exclusion of any such lien are
brought to the notice of all subcontractors and other persons dealing
with or transporting any such Appurtenances and Components, or OWNER
Furnished Equipment, which shall include but not be limited to such
notification being contained in all purchase orders and other documents
emanating from the BUILDER.
(e) No mortgages, charges, liens or encumbrances of whatsoever nature shall
be created or registered against the VESSEL or any part thereof
including its Appurtenances and Components without the prior written
consent of the BUYER.
(f) The BUILDER shall fully indemnify, defend and hold the BUYER, its
parent, holding and affiliated companies harmless against all and any
consequences including all costs, claims, causes of action,
liabilities, damages and expenses whatsoever arising from such breach
of warranty.
(g) Notwithstanding the foregoing, the BUYER shall not be liable at any
time for the loss of or damage to the VESSEL or any part thereof or any
of the Appurtenances and Components or any OWNER Furnished Equipment
and the BUILDER shall be responsible for any loss of or damage to the
same and for the cost of storing, handling and transporting the same
and shall effect such additional insurance as may be necessary to cover
the risk of such loss or damage from any cause whatsoever.
(h) The risk of loss of or damage to the VESSEL, including all
Appurtenances and Components (as defined in this Paragraph 5) and all
OWNER Furnished Equipment shall pass to the BUYER only upon delivery
and acceptance thereof having been completed as stated above; it being
expressly understood that, until such delivery by BUILDER and
acceptance by BUYER is effected, any and all risk of loss of or damage
to the VESSEL, including all Appurtenances and Components (as defined
in this Paragraph 5) and all OWNER Furnished Equipment shall be in the
BUILDER.
6. Removal of VESSEL:
The BUYER shall take possession of the VESSEL immediately upon delivery
and acceptance thereof and shall remove the VESSEL from the premises of the
Shipyard within thirty (30) calendar days after delivery and acceptance thereof
is effected. If the BUYER shall not remove the VESSEL from the premises of the
Shipyard within the aforesaid thirty (30) calendar days, then, in such event
commencing on the thirty-first (31st) calendar day the BUYER shall pay to the
BUILDER the reasonable mooring charges of the VESSEL.
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7. Export License:
If required, the BUILDER shall be obligated to secure export license(s)
for the VESSEL and shall exercise its best efforts to secure prompt issuance of
any such export license(s) as well as any other required governmental approvals
or authorizations required for removal of the VESSEL from the country of
construction, including the territorial waters thereof. In the event BUILDER has
not secured any required export license(s) for the VESSEL within thirty (30)
calendar days of the Effective Date of this Contract, as defined in Article
XXIII, then BUILDER shall be deemed to be in default under Article XIV and BUYER
may elect, at any time thereafter, to cancel this Contract as provided in
Article XI.
ARTICLE VIII - FORCE MAJEURE DELAYS
1. Causes of Delay:
If, at any time before actual delivery of the VESSEL, either the
construction of the VESSEL or any performance required as a prerequisite to
delivery of the VESSEL is delayed due to Acts of God; acts of princes or rulers;
requirements of government authorities; war or other hostilities or preparations
therefor; revolution, sabotages, general strikes, general lockouts or other
general labor disturbances; floods, typhoons, hurricanes, tornadoes, windstorms,
lightning or other abnormal weather conditions which prevent work for at least
three (3) consecutive days; earthquakes, tidal waves, explosions, collisions or
strandings, embargoes, import restrictions, defects in materials, machinery or
equipment which could not have been detected by the BUILDER using reasonable
care (provided same did not result from the BUILDER's failure to take the
reasonably necessary measures to avoid any such delay); casting or forging
rejects or the like not due to negligence; unusual delays caused by the
Classification Society or other bodies whose documents are required (provided
same did not result from BUILDER's failure to take the reasonably necessary
measures to avoid any such delay); destruction of or damage to the Shipyard or
works of the BUILDER, its contractors, subcontractors or suppliers, or of or to
the VESSEL or any part thereof, by any causes herein described which in turn
necessarily and actually delay the construction of the VESSEL or the BUILDER's
performance under this Contract, and which could not have been prevented by the
exercise of reasonable diligence on the part of BUILDER, its contractors,
subcontractors or suppliers; then and in any such case, subject to the
provisions of Paragraph 2 below, the date by which the BUYER may either cancel
this Contract under Article III, Paragraph 1(b) or impose liquidated damages
under Article III, Paragraph 1(c), shall be postponed for a period of time which
shall not exceed the total accumulated time of all such delay, provided in no
event shall local strikes or labor disturbances involving BUILDER's or its
contractors' or subcontractors' employees, acts or defaults of BUILDER's
contractors, subcontractors or suppliers or breach of BUILDER's, its
contractors', subcontractors', or suppliers' warranties or guarantees be
considered as an allowable delay.
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2. Notice of Delay:
As soon as possible and in no event more than five (5) working days
after the date of discovery by the BUILDER of an occurrence of any cause of
delay, on account of which the BUILDER claims that it is entitled under this
Contract to delay, the BUILDER shall notify the BUYER in accordance with Article
XXII of the date such causes of delay occurred and the nature thereof. As soon
as the ending of such cause of delay is known, the BUILDER shall notify the
BUYER in accordance with Article XXII of the date such cause of delay ended. The
BUILDER shall also notify the BUYER in accordance with Article XXII of the
period by which the BUILDER claims an allowable delay by reason of such cause of
delay with all reasonable dispatch after it has been determined. Failure by
BUILDER to give the required notice shall preclude BUILDER's right in such case
to claim allowable delay under this Article.
ARTICLE IX - OWNER FURNISHED EQUIPMENT DELAYS
OWNER shall furnish or cause to be furnished to BUILDER at BUILDER's
Shipyard those items of machinery, material and equipment as set forth in the
Specifications to be furnished by OWNER (herein referred to as "OWNER Furnished
Equipment" or "OFE") on or before the time specified for such delivery in the
Contract Specifications (Exhibit "A"). However, BUILDER shall not require OWNER
Furnished Equipment to be delivered to BUILDER's Shipyard prior to the time that
said OWNER Furnished Equipment is required, in BUILDER's reasonable opinion, to
meet the BUILDER's Construction Schedule, as defined herein.
If OWNER's failure to timely deliver OWNER Furnished Equipment to
BUILDER's Shipyard directly causes any delays in the BUILDER's Construction
Schedule, then such delays shall be understood to be Permissible Delays as
contemplated by Article III, Paragraph 2, and the Delivery Date shall be
extended by the equivalent number of days of delay in delivery of such OWNER
Furnished Equipment to BUILDER's Shipyard. (BUILDER agrees, however, to use its
best efforts to proceed with its work on the VESSEL so as to minimize the delay
that may be incurred by reason of late delivery of OWNER Furnished Equipment.)
In order to enable BUILDER to efficiently and economically proceed with its work
on the VESSEL, OWNER shall give BUILDER notice of any actual or anticipated
delay in the delivery of OWNER Furnished Equipment to BUILDER's Shipyard.
Should OWNER fail to timely deliver OWNER Furnished Equipment to
BUILDER at BUILDER's Shipyard due to causes other than force majeure (which
shall in this context have the same general meaning as the causes specified in
Paragraph 1 of this Article) and such delay directly results in increased costs
to BUILDER attributable to additional unavoidable physical work on the VESSEL,
OWNER shall reimburse BUILDER for its actual documented cost of such additional
work. BUILDER's entitlement to such reimbursement shall be applicable only in
the event that BUILDER has submitted prior written notice to OWNER that the
delay in delivery of OWNER Furnished Equipment will or may require additional
physical work to be performed on the VESSEL.
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ARTICLE X - WARRANTY OF QUALITY
1. Warranty:
Subject to the provisions hereinafter set forth, the BUILDER warrants
the VESSEL and all components thereof fabricated and/or furnished by the BUILDER
and/or its contractors and/or subcontractors to be free of defects in
workmanship and materials, and the BUILDER undertakes to remedy, free of charge
to the BUYER, any defects in the VESSEL (which term shall include her hull,
machinery, equipment and gear) which are due to defective material and/or
improper workmanship on the part of the BUILDER and/or its contractors and/or
subcontractors as well as any error and/or inadequacy in BUILDER's design work,
if any, and any defects or discrepancies resulting from the failure of the
VESSEL to either function properly in accordance with the standards set forth in
the Specifications or to meet the Specifications, provided that the defects,
errors or inadequacies are discovered within a period of twelve (12) months
commencing upon the actual delivery date of the VESSEL.
However, the BUILDER's warranty under and pursuant to this Article
shall not include any defects of or due to machinery and equipment supplied by
BUYER, and installed on the VESSEL, except as respects the consequences of the
BUILDER's and/or its contractors' and/or subcontractors' defective material,
improper workmanship and/or failure to install or incorporate any such equipment
into the VESSEL in a good and workmanlike manner so as to function properly and
in accordance with the Specifications. The BUILDER agrees to deliver and assign
to the BUYER all guarantees and warranties received by it in the purchase of
said machinery and equipment.
2. Notice of Defects:
The BUYER shall promptly notify the BUILDER in accordance with Article
XXII of any defects for which claim is made under this warranty after the
discovery thereof. The BUYER's notice shall describe the nature and extent of
the defects to the extent known to BUYER. The BUILDER shall promptly acknowledge
receipt of any such notice from BUYER. The BUILDER shall have no obligation for
any defects discovered prior to the expiry date of the said Warranty Period,
unless notice of such defects is received by the BUILDER not later than thirty
(30) days after expiry thereof.
3. Remedy of Defects:
(a) The BUILDER shall remedy, at its expense, any defects against which the
VESSEL is warranted under this Article by making all necessary repairs
or replacements at the Shipyard.
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(b) However, if it is impractical to bring the VESSEL to the Shipyard, the
BUYER may cause the necessary repairs or replacements to be made
elsewhere which is deemed by BUYER to be suitable for the purpose,
provided that, in such event, the BUILDER may, at its own expense,
forward or supply replacement parts or materials to the VESSEL, unless
forwarding or supplying thereof to the VESSEL would impair or delay the
operation or working schedule of the VESSEL. In the event that the
BUYER proposes to cause the necessary repairs or replacements to be
made to the VESSEL at any other shipyard or location than the Shipyard,
the BUYER shall first, but in all events as soon as possible, give the
BUILDER notice in accordance with Article XXII of the time and place
such repairs will be made, and if the VESSEL is not thereby delayed, or
her operation or working schedule is not thereby impaired, the BUILDER
shall have the right to verify at its own cost and by its own
representative(s) the nature and extent of the defects complained of.
The BUILDER shall, in such case, promptly notify the BUYER in
accordance with Article XXII after such examination has been completed
of its acceptance or rejection of the defects as ones that are covered
by the warranty herein provided. Upon the BUILDER's acceptance of the
defects as justifying remedy under this Article, or upon award of the
dispute resolution authority so determining, the BUILDER shall
immediately pay to the BUYER all documented costs incurred for such
repairs or replacements. Provided, that the costs chargeable to BUILDER
for repairs or replacements under this Article shall not exceed three
(3) times the amount that such repairs and replacements would have cost
if they had been carried out by BUILDER at its Shipyard based on
BUILDER's normal rates as published at the time of repairs and/or
replacement. Interest on any unpaid balance due hereunder shall be paid
at the rate of ten percent (10%) per annum, commencing thirty (30)
calendar days after BUILDER's receipt of BUYER's invoice for any
amounts due under this Article and continuing until payment has been
remitted to BUYER.
(c) In any case, the VESSEL shall be taken at the BUYER's cost and
responsibility to the place elected, ready in all respects for such
repairs or replacements.
(d) Any work performed or any material supplied by BUILDER under this
Article shall be further warranted for the balance of the warranty
period specified in Paragraph 1 of this Article or six (6) months after
completion of such work or supply, whichever is later.
(e) Any dispute under this Article shall be resolved in accordance with the
provisions of Article XVII hereof.
4. Extent of BUILDER's Responsibility:
(a) The BUILDER shall have no responsibility or liability for any defects
whatsoever in the VESSEL other than the defects specified in this
Article. Nor shall the BUILDER in any circumstances be responsible or
liable for any consequential or special losses, damages or expenses
including, but not limited to, loss of time, loss of profit or earnings
directly or indirectly occasioned to the BUYER due to
25
the defects specified in this Article or due to repairs or other works
done to the VESSEL to remedy such defects.
(b) The BUILDER shall not be responsible for any defects in any part of the
VESSEL which have been caused subsequent to delivery of the VESSEL by
any replacement or repair work performed by any other contractor, or
for any defects to the extent the same have been caused by use in
excess of specified design limitations or improper maintenance of the
VESSEL on the part of the BUYER, its servants or agents or by ordinary
wear and tear.
(c) Subject always to the terms of Article XV, the warranty contained
hereinabove in this Article replaces and excludes any other liability,
guarantee, warranty and/or condition imposed or implied by the law,
customary, statutory or otherwise, by reason of the construction and
sale of the VESSEL by the BUILDER for and to the BUYER.
5. Guarantee Engineer:
The BUILDER shall have the right to appoint a Guarantee Engineer to
serve on the VESSEL as its representative for such portion of the warranty
period as the BUILDER may decide at BUILDER's cost and risk. The BUYER and its
employees shall give the Guarantee Engineer full cooperation in carrying out his
duties as the representative of the BUILDER on board the VESSEL. The BUYER shall
accord the Guarantee Engineer the treatment reasonably comparable to the
VESSEL's Chief Engineer and shall provide him with suitable accommodations and
subsistence at no cost to the BUILDER and/or the Guarantee Engineer.
ARTICLE XI - CANCELLATION BY BUYER
1. Notice:
In the event that the BUYER shall exercise its right of cancellation of
this Contract under and pursuant to any of the provisions of this Contract
specifically permitting the BUYER to do so, then the BUYER shall notify the
BUILDER in accordance with Article XXII and such cancellation shall be effective
as of the date when notice thereof is received by the BUILDER.
2. Refund by BUILDER:
Within five (5) business days of receipt of BUYER's notice of
cancellation of this Contract the BUILDER shall refund to the BUYER in U.S.
Dollars the sum of: (a) the full amount of all sums paid by the BUYER to the
BUILDER on account of the VESSEL; and (b) the cost delivered at BUILDER'S
Shipyard of all OWNER Furnished Equipment
26
which has been delivered to BUILDER's Shipyard for installation in the Vessel
unless the BUILDER proceeds to dispute resolution under the provisions of
Article XVII hereof.
In such event, the BUILDER shall pay the BUYER interest at the rate of
ten percent (10%) per annum on the amount required herein to be refunded to the
BUYER, computed from the respective dates on which either such sums were paid by
the BUYER to the BUILDER or the respective items of OWNER Furnished Equipment
were delivered to BUILDER's Shipyard, to the date of remittance by wire transfer
of such refund to the BUYER by the BUILDER.
For purposes of the provisions addressing the BUYER's rights under this
Contract (i) prior to execution of this Contract by the parties, BUILDER shall
provide to the BUYER as partial security for BUILDER's obligations under this
Contract a performance guarantee duly executed by Sembcorp Marine Limited in the
form annexed as Exhibit "F", and (ii) on or before the Construction Commencement
Date the BUILDER shall provide to the BUYER as partial security for BUILDER's
obligations under this Contract an irrevocable stand-by letter of credit
confirmed by a bank in the United States acceptable to BUYER, in an amount
equivalent to ten percent (10%) of the Contract Price as defined in Article II,
Paragraph 1, and in the form annexed as Exhibit "G" in order to partially assure
refund to the BUYER of such sums as are contemplated in this Contract due to any
event of BUILDER's default hereunder including warranties pursuant to Article X.
3. Discharge of Obligations:
Upon such refund by the BUILDER to the BUYER, and the BUYER's receipt
thereof, title to the VESSEL and all OWNER Furnished Equipment which has been
delivered to the BUILDER's shipyard for installation in the VESSEL shall be
transferred from the BUYER to the BUILDER and thereafter all obligations, duties
and liabilities of each of the parties hereto to the other under this Contract
(excluding only the provisions of Articles X, XI, XV, XVII and XX) shall be
forthwith completely discharged.
4. Termination for BUYER's Convenience:
Notwithstanding any other provision of this Contract, in addition to
any other right that the BUYER may have under the Contract to cancel the
Contract, the BUYER shall have the right to terminate the Contract, at its sole
option, upon notifying the BUILDER in accordance with Article XXII, which notice
may be given at any time prior to actual delivery of the VESSEL by the BUILDER
to the BUYER and acceptance of the VESSEL by the BUYER. In the event the BUYER
exercises such right of termination at any time after the Construction
Commencement Date, the BUYER shall pay the BUILDER within thirty (30) calendar
days of the BUILDER's receipt of such notice BUILDER's documented costs
(including overhead costs and project closure costs) up to the date of
termination, less any installment payments received by BUILDER, plus a lump sum
termination fee calculated as twenty percent (20%) of any remaining installment
payments which are not yet due and payable under the terms of this Contract as
of the date of termination. Provided, however, that the total amount
27
payable by the BUYER to the BUILDER shall never exceed the Contract Price.
Provided, further, that no fee or cost shall be payable by the BUYER to the
BUILDER in respect of BUYER's termination of either this Contract or any other
contracts for construction of a vessel between the BUILDER and the BUYER in
respect of which, at the time of BUYER's notice of termination, the Construction
Commencement Date for such contract has not occurred.
The termination fee as described in the preceding paragraph shall be
the BUYER's sole financial obligation to the BUILDER and the BUILDER's exclusive
remedy in the event of such termination of the Contract. Upon payment by the
BUYER of the applicable termination fee to the BUILDER (or refund by the BUILDER
to the BUYER, as the case may be), the BUILDER shall release the BUYER from any
liability or obligation to reimburse the BUILDER for any costs or damages,
including without limitation, loss of profits or revenues that the BUILDER may
suffer or incur from such termination and the BUYER shall at that time release
the stand-by letter of credit and the performance guarantee.
ARTICLE XII - SUSPENSION BY BUYER
1. Suspension of performance for BUYER's convenience:
At the BUYER's sole discretion, the BUYER shall have the recurring
right, exercisable at any time, subject to giving forty-five (45) calendar days
written notice to the BUILDER, to suspend performance under this Contract in
which case the BUILDER shall promptly forward to the BUYER all completed or
uncompleted drawings, reports and other documents related to the BUILDER's
performance under this Contract and the following provisions shall apply:
- The BUYER shall pay the BUILDER the sum of (i) progress
payments due under the terms of the Contract prior to the date
of suspension (to the extent not already paid), (ii) the
BUILDER's audited additional costs, including overhead,
directly related to this Contract up to the date of
suspension; (iii) the BUILDER's audited direct costs,
including overhead, to mothball the VESSEL in preparation for
the suspension period; (iv) a fee of Thirty Thousand United
States Dollars (U.S.$30,000) per day during the period of
suspension; and (v) (the BUILDER's audited direct costs,
including overhead, to reactivate the construction of the
VESSEL.
- The BUILDER shall immediately and in consultation with the
BUYER revise its work schedule or program so as to reduce as
much as possible the consequences to the BUYER flowing or
which may flow from such suspension.
- The BUILDER shall use its best endeavors to maintain,
redeploy, transfer or retain its personnel and equipment in
any part of the work not
28
suspended at the same time or in any other work for the BUYER
or its affiliates under other contracts.
- However, no fee or cost shall be payable by the BUYER to the
BUILDER in respect of either this VESSEL or any other vessels
that the BUILDER may have contracted to build for the BUYER in
respect of which at the time of BUYER's notice of suspension
the Construction Commencement Date for such vessel has not
occurred.
- The BUILDER shall notify the BUYER in writing immediately upon
the BUILDER's performance hereunder being suspended, of the
date and time on which the services were suspended and forward
to the BUYER all other particulars which the BUILDER may rely
on in making any claim under this Article.
- The BUYER's right to suspend the Contract as provided herein
shall be without prejudice to its right to terminate this
Contract at any time in accordance with the provisions of
Article XI, Paragraph 4.
- The period of suspension shall not be greater than six (6)
months unless otherwise mutually agreed in writing.
2. Recommencement of performance at BUYER's convenience:
- At the BUYER's sole discretion, the BUYER shall have the
recurring right, exercisable at any time, subject to giving
forty-five (45) calendar days written notice to the BUILDER,
to require the BUILDER to recommence performance which has
been suspended under this Contract in which case the BUILDER
shall promptly recommence all or such part of the performance
as specified by BUYER in said notice.
- The BUILDER shall notify the BUYER in writing immediately upon
the BUILDER's performance hereunder recommencing following
suspension, of the date and time on which the services were
recommenced and forward to the BUYER all other particulars
which the BUILDER may rely on in making a claim under the
Article.
- The Delivery Date, as defined in Article VII, Paragraph 1(a),
shall be extended for a period corresponding to the period of
the suspension caused or requested by the BUYER, which shall
be understood to constitute Permissible Delays as contemplated
by Article III, Paragraph 2.
29
ARTICLE XIII - BUYER'S DEFAULT
1. Definition of Default:
The BUYER shall be deemed to be in default of performance of its
obligations under this Contract in the following cases:
(a) If the BUYER fails to pay any installments to the BUILDER within five
(5) business days after receipt of notice in accordance with Article
XXII that any such installment became due and payable under the
provisions of Article II hereof; or
(b) If the BUYER fails to pay the final installment to the BUILDER
concurrently with the delivery of the VESSEL by the BUILDER and
acceptance thereof by the BUYER as provided in Article VII hereof; or
(c) If the BUYER fails to take delivery of the VESSEL, when the VESSEL is
duly tendered for delivery by the BUILDER under the provisions of
Article VII hereof; or
(d) If the BUYER goes into liquidation, whether voluntary or compulsory, or
enters into a scheme of arrangement, or makes a general assignment of
its assets for the benefit of its creditors, or appoints a receiver or
receivers of any kind whatsoever, whether temporary or permanent, for
the property of the BUYER, or if the BUYER institutes proceedings for
its reorganization or such proceedings are instituted by creditors and
approved by the court, whether proposed by a creditor, a stockholder or
any other person whomsoever, or if BUYER suffers any execution against
a major portion of its assets which is not satisfied within seven (7)
days.
If any default by BUYER under Paragraphs (a), (b) or (c) above
necessarily and actually causes delays in either the construction of the VESSEL
or any performance required as a prerequisite to delivery of the VESSEL, such
delays shall be understood to be Permissible Delays as contemplated by Article
III, Paragraph 2.
2. Interest and Charges:
If the BUYER has not made payment as to any installment as provided in
Paragraph 1(a) and (b) of this Article on its due date, the BUYER shall pay
interest on such installment at the rate of ten percent (10%) per annum from the
due date thereof to the date of payment to the BUILDER of the full amount of
such installments, including interest. In case the BUYER shall fail to take
delivery of the VESSEL as provided in Paragraph 1(c) of this Article, the BUYER
shall pay interest upon the final installment at the same rate as aforesaid from
and including the day upon which the VESSEL is duly tendered for delivery by the
BUILDER. In the event a due date falls on a non-business day of either BUILDER
or BUYER, the payment with respect thereto shall be due on the next succeeding
business day of both BUILDER and BUYER.
3. Effect of BUYER's Default:
30
(a) If any default by the BUYER occurs as defined in Paragraph 1(a), (b)
and (c) of this Article, the Delivery Date shall be automatically
postponed for the period of continuance of such default by the BUYER.
(b) If any such default by the BUYER continues for a period of five (5)
business days, the BUILDER may, at its option, notify BUYER in
accordance with Article XXII of BUILDER's intention to cancel the
Contract, and if BUYER does not remedy the default within thirty (30)
business days after receipt of such notice, BUILDER may cancel this
Contract by giving notice to such effect to the BUYER in accordance
with Article XXII.
In the event of such cancellation of this Contract, the BUILDER shall
be entitled to retain any installment or installments previously paid
by the BUYER to the BUILDER on account of this Contract (it being
understood by both parties that retention of any such installments by
BUILDER is by way of liquidated damages and not by way of penalty).
(c) BUYER shall not under any circumstances be responsible or liable to
BUILDER, its contractors or subcontractors, for any consequential or
special losses, damages or expenses including, but not limited to, loss
of time, loss of profit or earnings whether directly or indirectly
arising out of this Contract.
4. Sale of VESSEL:
(a) In the event of default by the BUYER pursuant to this Contract as set
forth above, the BUILDER shall have the right either to complete or not
to complete the VESSEL as it deems fit, and to sell the VESSEL at a
public or private sale, upon ten (10) business days prior written
notice to the BUYER in accordance with Article XXII, on such terms and
conditions as the BUILDER deems fit, without being answerable for any
loss or damage.
(b) In the event of the sale of the VESSEL in a completed state, the
proceeds of sale received by the BUILDER shall be applied first to
payment of all documented expenses attending such sale and otherwise
incurred by the BUILDER as a result of the BUYER's default, and then to
payment of all unpaid installments of the Contract Price and interest
on such installments at the rate of ten percent (10%) per annum from
the respective due dates thereof to the date of application.
(c) In the event of sale of the VESSEL in an incompleted state, the
proceeds of sale received by the BUILDER shall be applied first to all
documented expenses attending such sale and otherwise incurred by the
BUILDER as a result of the BUYER's default, and then to payment of all
costs of construction of the VESSEL less the installments so retained
by the BUILDER.
(d) If the proceeds of sale are insufficient to pay such total amounts
payable as aforesaid, the BUYER shall promptly pay the deficiency to
the BUILDER upon written request with interest at the rate of ten
percent (10%) per annum from the date of BUILDER's written request for
payment to the date of BUYER's payment to BUILDER.
31
(e) In either of the above events of sale, if the proceeds of sale exceed
the total of amounts to which such proceeds are to be applied as
aforesaid, the BUILDER shall promptly pay the excess to the BUYER with
interest at the rate of ten percent (10%) per annum from the date of
sale to the date of payment to BUYER.
The rights conferred upon the BUILDER under the terms of this Article
XIII shall be in lieu of any rights which the BUILDER would have either
at law or in equity upon the happening of the events of default
specified herein, or upon any failure on the part of the BUYER to
perform the undertakings, agreements, and covenants on its part to be
performed hereunder. The failure of the BUILDER to exercise the rights
conferred upon it hereunder in any one or more instances of the
occurrence of an event of default, as hereinabove defined, shall not
constitute a waiver of BUILDER's right subsequently to exercise such
rights under this Contract.
ARTICLE XIV - BUILDER'S DEFAULT
1. Definition of Default:
The BUILDER shall be deemed to be in default of its obligations under
this Contract if, after BUYER gives five (5) calendar days written notice in
accordance with Article XXII to correct the same, the BUILDER fails in any
respect to observe the provisions of this Contract.
Subject always to the provisions of Article III, so long as BUILDER
takes prompt and reasonable action toward the cure or correction of the
condition complained of, and continues diligently to pursue the said cure or
correction, BUILDER shall not be considered to be in default on account thereof
if it is not possible to correct the breach or defect within said five (5) day
period.
The following shall also be considered to be events of default:
(a) (i) insolvency or inability of the BUILDER to pay its debts as and
when they fall due; or
(ii) presentation of a winding-up petition (except for the purpose
of amalgamation or reconstruction when solvent); or
(iii) issuance of a notice of meeting of members or shareholders for
the passing of a resolution for winding-up or reconstruction
(except for the purpose of amalgamation or reconstruction when
solvent); or
32
(iv) making of a statutory declaration by the directors or similar
officers of the BUILDER that the BUILDER cannot by reason of
its liabilities continue its business; or
(v) presentation of a petition for judicial management; or
(vi) making of a proposal to the BUILDER's creditors for a
composition in satisfaction of its debts or a scheme of
arrangement of its affairs; or
(vii) making a general assignment of the BUILDER's assets for the
benefit of its creditors; or
(viii) the appointment of a receiver, receiver or manager, or
provisional liquidator; or
(ix) execution or other process issued on a judgment, direction,
decree or order of any court in favour of a creditor of the
BUILDER is returned unsatisfied in whole or in part; or
(x) taking of steps to enter into a standstill or similar
arrangement whereby creditors of the BUILDER agree to give the
BUILDER more time to pay its debts or restructure its debts
either by making installment payments or otherwise; or
(xi) additionally similar or analogous processes or events under
any applicable law affecting the BUILDER, its assets or its
liabilities; or
(b) The BUILDER having met or exceeded the allowable delay periods as
provided in Article III, Paragraphs 1(a) or 1(b); or
(c) Any event of default under any other contracts for the construction of
a vessel between BUILDER, or any of its affiliates, and BUYER, its
parent, holding or affiliated companies or a joint venture in which
BUYER or any one or more of such related companies of BUYER owns at
least a fifty percent (50%) equity interest, which entitles the BUYER
or such other parent, holding, affiliated or joint venture companies of
BUYER to terminate in accordance with the terms thereof.
2. Effect of BUILDER's Default:
(a) If any default by the BUILDER occurs as defined in Paragraph 1 of this
Article, BUYER may, at its election, either cancel this Contract as
provided in Article XI, or require BUILDER to deliver possession of the
VESSEL and all of its Appurtenances and Components (as defined in
Article VII, Paragraph 5) to BUYER (and title thereto, to the extent
that title to any such items is not already vested in the BUYER), in
whatever state of completion the same may be at the date of such
election. If BUYER elects to take possession of the VESSEL (and title
thereto, to the extent that title to any such items is not already
vested in the
33
BUYER), as aforesaid, then BUYER may bring such workers to the Shipyard
as BUYER chooses and perform such work as may be necessary to prepare
the VESSEL for removal, and may so remove the VESSEL from BUILDER's
Shipyard to a reputable shipyard of international standing in BUYER's
reasonable opinion for completion or another location of BUYER's
selection for disposal.
BUYER may thereafter proceed to contract with or employ any other
person or persons to complete the work or any part thereof and provide
any equipment, materials and labor as may be necessary for such
completion.
Upon completion of the work by the BUYER, the BUYER shall document the
cost to the BUYER of completing the work including all expenses,
charges, losses and damages incurred by the BUYER in consequence of and
incidental to the default of the BUILDER.
Once BUYER has documented BUYER's cost to complete, BUILDER shall be
entitled to receive, (or shall be required to repay to BUYER, as the
case may be) a sum arrived at in the following manner:
The sum of (a) all progress payments paid by BUYER to BUILDER, plus (b)
BUYER's documented cost of completion, as aforesaid, subtracted from
the Contract Price set forth in Article II, including interest on the
amount receivable (or payable, as the case may be) hereunder at the
rate of ten percent (10%) per annum computed from the time BUYER has
documented its cost to complete the VESSEL to BUILDER until remittance
of the amounts receivable or payable.
The rights conferred upon the BUYER under the terms of this Article XIV
shall be in addition to, and not in substitution for, any rights which
the BUYER would have in either law or equity upon the happening of the
events of default specified herein, or upon any failure on the part of
the BUILDER to perform the undertakings, agreements, and covenants on
its part to be performed hereunder. The failure of the BUYER to
exercise the rights conferred upon it hereunder in any one or more
instances of the occurrence of an event of default, as hereinabove
defined, shall not constitute a waiver of BUYER's right subsequently to
exercise such rights under this Contract.
ARTICLE XV - LIABILITIES AND INDEMNITIES
1. Liability of BUILDER:
BUILDER hereby agrees to defend, indemnify and hold harmless BUYER, its
parent, holding and affiliated companies, the owner and operator of the VESSEL,
their employees, directors, officers and agents, including the VESSEL and all
other vessels in the same or associated ownership, against all claims, demands
or causes of action, by all parties or persons whomsoever and whatsoever
including, without limitation,
34
BUILDER and its employees, directors, officers, agents, contractors and
subcontractors and all third persons based on personal injury, disease
or death or property damage or destruction occurring prior to the
delivery to and acceptance by BUYER of the VESSEL arising out of or in
any way related to the performance by BUILDER or any of its contractors
or subcontractors of the work hereunder, regardless of cause, including
the sole or concurrent negligence or fault of BUYER, its employees,
directors, officers, agents or subcontractors, or of a third party, or
an event of force majeure. Notwithstanding the foregoing, the BUILDER
shall be under no liability whatsoever to the BUYER, the
Representative, his assistant(s) or BUYER's contractors (other than
BUILDER) or invitees for personal injuries, including disease and
death, suffered by the Representative, his assistant(s) or BUYER's
contractors (other than BUILDER) or invitees during the time when he or
they are on the VESSEL, or within the premises of either the BUILDER or
its contractors or subcontractors, or are otherwise engaged in and
about the construction of the VESSEL, unless such personal injuries,
including disease and death, were caused by the gross negligence or
willful misconduct of the BUILDER, any of its employees, agents,
contractors or subcontractors. The BUILDER shall assume liability to
the BUYER, the Representative and his assistant(s), BUYER's contractors
(other than BUILDER) and BUYER's invitees for damage to, loss or
destruction of property of the BUYER's Representative, his
assistant(s), BUYER's contractors (other than BUILDER) or BUYER's
invitees if such damage, loss or destruction was caused by the gross
negligence or willful misconduct of the BUILDER, or of any of its
employees, agents, contractors or subcontractors. For purposes of this
Contract, the terms "gross negligence" and "willful misconduct" are
defined as "an intentional act or omission in disregard of harmful
avoidable consequences, or a reckless act or omission in disregard of
harmful avoidable consequences".
2. Scope of Indemnities:
In all circumstances where responsibility is allocated herein, the
indemnifying party shall be obligated to bear the expense of the investigations
and expenses of all claims or demands or causes of action arising therefrom and
to pay the full amount of any judgment rendered against the indemnified parties,
it being stipulated that all obligations of indemnity assumed herein shall
survive the termination of this Contract, regardless of how such termination is
effected. The indemnifying party shall have the control of the defense and
settlement of all such claims and lawsuits including the selection of attorneys,
the expense of all which shall be borne by it. The indemnified parties shall
provide reasonable assistance to the indemnifying party in relation to the
defense of claims which are subject to indemnity hereunder. Nothing herein
contained shall prevent the indemnified parties from participating at their own
expense with counsel of their own choosing in any such defense or settlement.
3. Consequential Loss/Damage
Notwithstanding any other provision of this Contract except as provided
in Article III(1)(c), neither party shall be responsible for or liable to the
other party for any special, indirect or consequential losses, damages or
expenses including, but not limited to, loss of production, loss of profit or
earnings suffered or incurred by any party arising out of or in connection with
the Contract, howsoever the same may have been caused.
35
ARTICLE XVI - INSURANCE
1. Extent of Insurance Coverage:
From the time of Contract signing until the VESSEL is completed,
delivered to and accepted by the BUYER, the BUILDER shall, at its own cost and
expense, keep the VESSEL and all machinery, materials and equipment either
delivered to the Shipyard or being handled by BUILDER for the VESSEL or built
into, or installed in or upon the VESSEL (including all Appurtenances and
Components and all OWNER Furnished Equipment as defined in Article IX), fully
insured under coverage satisfactory to BUYER and corresponding to the American
Institute Clauses for Builder's Risks.
Said Builder's Risks insurance shall include supplemental coverage for
war risks, strikes and earthquakes but BUILDER may elect to self insure such
supplemental coverage for the mutual benefit of BUILDER and BUYER unless it
appears that a circumstance of political instability is imminent, at which time
BUILDER shall cause the standard Builder's Risks policy required hereunder to be
augmented with coverage for war risks, strikes, locked-out workmen, labor
disturbances, riots, civil commotion without deletions of protection and
indemnity and collision clauses, and earthquakes.
The amount of such insurance coverage shall, up to and including the
date and time of delivery of the VESSEL, be in an amount at least equal to, but
not limited to, the aggregate of the payments made by the BUYER to the BUILDER
and the value of any OWNER Furnished Equipment (as defined in Article IX)
delivered to the Shipyard, which OWNER Furnished Equipment (as defined in
Article IX) shall not exceed a delivered value of One Hundred Seventy-Five
Million United States Dollars (U.S.$ 175,000,000).
The policy referred to hereinabove shall be taken out in the joint
names of the BUILDER and the BUYER and all losses under such policy shall be
payable to the BUILDER and/or the BUYER in accordance with their respective
interests. Any deductible under this insurance policy shall be for the account
of BUILDER.
Notwithstanding the above, the BUYER shall compensate the BUILDER for
the increased insurance cost and expense under or pursuant to any part of this
Article, if any, incurred by the BUILDER due to the BUYER's Default as specified
in Article XIII hereof.
2. Application of Recovered Amount:
(a) Partial Loss:
In the event the VESSEL shall be damaged by any insured cause
whatsoever prior to acceptance thereof by the BUYER and in the further
event that such damage shall not constitute an actual or a constructive
total loss of the VESSEL, the BUILDER and/or BUYER shall apply the
amount recovered under the insurance policy referred to in Paragraph 1
of this Article to the repair of such
36
damage satisfactory to the BUYER and the Classification Society and the
regulatory bodies, and the BUYER shall accept the VESSEL under this
Contract if completed in accordance with this Contract and
Specifications.
(b) Total Loss:
However, in the event that the VESSEL is determined to be an actual or
constructive total loss, the BUILDER shall by the mutual agreement
between the parties hereto, either:
(i) Proceed in accordance with the terms of this Contract, in
which case the amount recovered under said insurance policy
shall be applied to the reconstruction of the VESSEL's damage,
provided the parties hereto shall have first agreed in writing
as to such reasonable postponement of the Delivery Date and
adjustment of other terms of this Contract including the
Contract Price as may be necessary for the completion of such
reconstruction; or
(ii) Refund to the BUYER the amount of all installments paid to the
BUILDER under this Contract plus the value of all OWNER
Furnished Equipment (as defined in Article IX) delivered to
the Shipyard with interest at the rate of ten percent (10%)
per annum computed from the date of loss of the VESSEL until
paid to BUYER, whereupon this Contract shall be deemed to be
terminated and all rights, duties, liabilities and obligations
of each of the parties to the other except as contemplated
under Articles XI, XV, XVII and XX shall terminate forthwith.
If the parties hereto fail to reach agreement as contemplated under
Sub-paragraph (b)(i), above, within two (2) months after the VESSEL is
determined to be an actual or constructive total loss, the provisions
of Sub-paragraph (b)(ii), above, shall apply.
3. Termination of BUILDER's Obligation to Insure:
The BUILDER's obligation to insure the VESSEL hereunder shall cease and
terminate forthwith upon delivery thereof and acceptance by the BUYER.
4. Supplemental Insurance:
In addition, from the time of Contract signing until the completion,
delivery and acceptance of the VESSEL, BUILDER and its contractors and
subcontractors shall, at their own cost, maintain the following insurances:
(a) Worker's Compensation and Employer's Liability Insurance affording
benefits as provided by applicable Worker's Compensation Statutes in
the jurisdiction where work is performed, and providing indemnity with
respect to Employer's Liability with limits as required by local laws,
but in no event less than Two Million Five Hundred Thousand United
States Dollars (U.S.$ 2,500,000) any one claim arising from any one
event.
37
(b) Third Party Liability Insurance covering all of BUILDER's operations
and including Automotive, Contractual Liability and Contractor's
Protective Liability with a combined single limit of not less than Five
Million United States Dollars (U.S.$ 5,000,000) per occurrence of
bodily injury and/or property damage.
(c) All of the insurances specified in this Article, excepting only
Statutory Worker's Compensation Insurance, shall name BUYER as an
additional assured.
(d) The underwriters shall be of recognized responsibility and the
policies, the terms of the policies, the insurance companies and
underwriters shall be subject to written approval by BUYER, which
approval shall not be unreasonably withheld. Upon BUYER's request at
any time, BUYER shall be furnished copies of such policies or other
evidence of insurance satisfactory to BUYER when obtained by BUILDER
from the underwriters and the receipt for the payment of the current
year's premium.
(e) Each policy specified in this Article shall include an endorsement
under which the underwriters waive rights of subrogation against the
BUYER, its parent, holding and affiliated companies.
(f) If the BUILDER shall fail to keep itself insured to the satisfaction of
the BUYER or to produce any such policy or receipt as aforesaid, the
BUYER shall be entitled at the expense of the BUILDER to take up such
insurance or insurances as the BUYER in its absolute discretion deems
necessary to protect its interest and the BUILDER shall be liable to
pay, indemnify and/or reimburse the BUYER forthwith on demand any sums
expended and/or incurred by the BUYER for such purpose.
(g) The BUILDER shall not do or allow to be done any act or thing which
might invalidate any insurance taken out pursuant to this Agreement.
ARTICLE XVII - DISPUTE RESOLUTION
1. Except where otherwise expressly provided herein, all claims by either party
against the other and all differences and disputes arising out of or in
connection with this Contract shall be referred to the Commercial Court, Queen's
Bench Division of the High Court of England and Wales to whose exclusive
jurisdiction each of the parties hereto irrevocably submits.
2. Without prejudice to sub-clause (1) above, any dispute or difference of
opinion between the parties relating to conformity of the construction of the
VESSEL, materials or workmanship with this Contract, the Specifications and
other contract documents, and/or any other technical issue, may, by written
agreement between the Parties, be
38
referred to an expert, acting as an expert and not an arbitrator, to be
appointed by written agreement between them and whose opinion on the matter
shall be final and binding upon the parties hereto. The costs of any expert
appointed pursuant to this Contract together with the costs of such proceedings
shall be paid by the losing party except as the expert may otherwise decide.
3. If the parties shall fail to agree in writing either (i) to submit the
dispute to a technical expert or (ii) upon the identity of a mutually acceptable
technical expert as aforesaid, such dispute shall be settled in the manner as
defined in sub-clause (1) above.
4. In the event that any dispute or difference is referred either to the
Commercial Court or to an expert, the court or expert, as the case may be,
shall, where the dispute requires, include a finding as to whether or not the
Delivery Date of the VESSEL should, as a result of such dispute, be in any way
altered thereby.
5. During the course of any proceedings as provided in this Article XVII prior
to delivery to and acceptance by the BUYER of the VESSEL, it is understood and
agreed that the BUILDER shall diligently continue the construction of the VESSEL
unless otherwise specifically instructed in writing by the BUYER.
6. For the purposes of any proceedings pursuant to this Article, the parties
hereby irrevocably appoint the following as their agents within England for the
service of process:
SFIC
Xxxxx Xxxxxx
Xxxxxx Xxxxx Xxxxxxx
Bedfont Cross, Stanwell Road
Heathrow Airport, Feltham TW14 8NY U.K.
The Builder
HFW Nominees Ltd.
Xxxxxx House
Lloyds Avenue
London EC3N 3AL U.K.
ARTICLE XVIII - RIGHTS OF ASSIGNMENT AND
VESSEL RECIPIENT DESIGNATION
1. Assignment of the Contract:
BUILDER shall not assign this Contract unless prior consent of the
BUYER is given in writing. BUYER may, without BUILDER's consent, assign this
Contract to any of its parent, holding, affiliated or successor companies, or to
any third party.
39
This Contract shall inure to the benefit of and shall be binding upon
the lawful successors or the legitimate assigns of either of the parties hereto.
2. XXXXX's Right to Designate Recipient of VESSEL:
BUYER shall have the right to designate a party other than BUYER as the
recipient of the BUYER's rights in respect of delivery and acceptance of the
VESSEL by submission of notice to BUILDER in accordance with Article XXII at any
time prior to the actual date of VESSEL delivery and acceptance. In the event of
submission of such notice by XXXXX, BUILDER shall (i) issue the Bill of Sale in
the name of the party which has been so designated by BUYER , (ii) if requested
by BUYER arrange for the performance guarantee and stand-by letter of credit
contemplated by Article XI, Paragraph 2, to be amended so as to be for the
benefit of such designee; and (iii) exert its best efforts to issue the other
documents to be furnished by it upon delivery and acceptance of the VESSEL in
the name of said party, which party shall be entitled to all rights, privileges
and benefits which would otherwise accrue to BUYER hereunder upon and following
delivery and acceptance of the VESSEL including, without limitation, those
contained in Article X (Warranty of Quality). The delivery of such notice to
BUILDER shall not relieve BUYER of any of its obligations under this Contract
whatsoever including, without limitation, obligations which may relate to or
arise either upon or subsequent to delivery and acceptance of the VESSEL.
ARTICLE XIX - TAXES AND DUTIES
BUILDER agrees to bear and pay all taxes, licenses, duties and fees of
whatsoever nature, including withholding taxes, levied or assessed on BUILDER in
connection with or incident to the performance of this Contract by any
governmental agency including, but not limited to, taxes or levies related to
unemployment compensation insurance, old age benefits, social security, or any
other taxes upon the income or wages of BUILDER, its agents, employees, and
representatives and any ad valorem or sales/VAT tax levied on the work or
BUILDER's invoices. BUILDER agrees to stipulate the aforesaid conditions in its
agreements with its subcontractors and representatives and BUILDER agrees to be
liable for any breach of such agreements. BUILDER shall indemnify, defend and
hold BUYER and its affiliates harmless in respect of liability for such taxes,
licenses, duties and fees.
ARTICLE XX - PATENTS, TRADEMARKS, COPYRIGHTS, ETC.
1. Patents, Trademarks and Copyrights:
(a) The BUILDER shall, without limitation of time, defend any claim, suit
or proceeding brought against the BUYER, its parent, holding,
affiliated companies, the owner or operator of the VESSEL and/or the
VESSEL alleging that the design, process, device, apparatus, plans or
specifications or the method of construction employed by the BUILDER
hereunder or the tools or implements
40
used by the BUILDER in the performance of this Contract constitutes
infringement of any patent, and the BUILDER shall indemnify, defend and
save the BUYER, its parent, holding and affiliated companies, the
VESSEL, its owners and operators harmless from and against any such
claim, suit or proceeding. The BUYER shall promptly notify the BUILDER
in accordance with Article XXII of any such claim, suit or proceeding
and shall permit the BUILDER to control the conduct and settlement of
such claim, suit or proceeding; provided, however, no settlement which
purports to acknowledge on the BUYER's behalf the validity of any
patent shall be entered into without the BUYER's prior written consent.
The BUYER shall provide information and assistance to the BUILDER, at
the BUYER's expense, as may be reasonably necessary to aid in the
conduct and settlement of the claim, suit or proceeding. The BUYER
shall be entitled to participate, at its own expense, in the conduct
and settlement of such claim, suit or proceeding through its selected
representatives and attorneys.
(b) The BUYER shall, without limitation of time, defend any claim, suit or
proceeding brought against the BUILDER alleging that the construction
or use by the BUILDER, pursuant to this Contract, of any design,
process, device or apparatus specified or furnished by the BUYER and
mounted upon or used in connection with the VESSEL constitutes
infringement of any patent and the BUYER shall indemnify, defend and
save the BUILDER harmless from and against any such claim, suit or
proceeding. The BUILDER shall promptly notify the BUYER in accordance
with Article XXII of any such claim, suit or proceeding and shall
permit the BUYER to control the conduct and settlement of such claim,
suit or proceeding; provided, however, no settlement which purports to
acknowledge on the BUILDER's behalf the validity of any patent shall be
entered into without the BUILDER's prior written consent. The BUILDER
shall provide information and assistance to the BUYER, at the BUILDER's
expense, as may be reasonably necessary to aid in the conduct and
settlement of the claim, suit or proceeding. The BUILDER shall be
entitled to participate, at its own expense, in the conduct and
settlement of such claim, suit or proceeding through its selected
representatives and attorneys.
ARTICLE XXI - ADDRESSES
The BUYER's address designated for the purpose of notices under this
Contract shall be Santa Fe International Corporation, 0000 XXX Xxxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx, 00000, U.S.A., Attention: Xx. X. Xxxxx Xxxxx, telefax (972)
701-7390, unless and until the BUYER notifies the BUILDER to the contrary in
writing. An additional copy of all such notices shall be sent to BUYER's
Representative as designated under this Contract, in accordance with Article
XXII.
The BUILDER's address designated for the purpose of notices under this
Contract shall be PPL Shipyard Pte. Ltd., 00 Xxxxxx Xxxx, Xxxxxxxxx 000000,
Attention: Xx. Xxx Xxxx Xxxxx, telefax (00) 000-0000, unless and until the
BUILDER notifies the BUYER to the contrary in writing.
41
No later than the Construction Commencement Date, each of the parties
shall furnish to the other in writing the name of its representatives who shall
be authorized to approve and execute all change orders.
ARTICLE XXII - NOTICES AND LANGUAGE
1. Notice:
Notices required or permitted to be given hereunder shall be in writing
and shall be deemed given when delivered personally, by registered or certified
mail or by facsimile to the address of the party receiving such notice, as
specified in Article XXI.
2. Language:
Any and all notices and communications in connection with this Contract
shall be written in the English language.
ARTICLE XXIII - EFFECTIVE DATE OF CONTRACT
This Contract shall become effective upon the date first written above
(herein called the "Effective Date").
ARTICLE XXIV - INTERPRETATION
1. Laws Applicable:
The parties hereto agree that the validity and interpretation of this
Contract and of each Article and part thereof shall be governed by English law
excluding, however, any of its conflicts of law rules or other provisions which
may refer to the laws of another jurisdiction.
2. Discrepancies:
All general language or requirements embodied in the attachments to
this Contract are intended to amplify, explain and implement the requirements of
this Contract. However, in the event that any language or requirements so
embodied permit an interpretation inconsistent with any provisions of this
Contract, then, in each and every such event, the applicable provisions of this
Contract shall prevail and govern. In the event that the specifications conflict
with the drawings, the specifications shall prevail and govern.
42
3. Independent Contractor:
The BUILDER agrees that it is an independent contractor in sole charge
of and in exclusive control of the work. The exercise by the BUYER or its
Representative of any right to review, approve and inspect the work shall not
relieve the BUILDER of its total responsibility for its work and schedule and
that of its contractors and subcontractors.
4. Headings:
The headings in this Contract shall not be deemed to be a part of this
Contract and are not intended to be used in the interpretation or construction
of this Contract.
5. Entire Agreement:
This Contract, along with the Overall Agreement dated on or about 11
April, 2001, between the parties, contains the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior negotiations, representations, undertakings and
agreements on the subject matter of this Contract between the parties for the
construction of this Vessel. In the event of any conflict between the provisions
of this Contract and the Overall Agreement, the provisions of the Overall
Agreement shall prevail.
ARTICLE XXV - CONFLICT AND AUDIT
1. Conflict of Interest:
BUILDER shall exercise reasonable care and diligence to prevent any
actions or conditions which could result in a conflict with the best interests
of BUYER, its parent, holding or affiliated companies. This obligation shall
apply to the activities of BUILDER'S employees and agents arising from this
Contract, in their relations with BUYER's employees and representatives and
their respective families, and with vendors, contractors, subcontractors and
third parties hereunder. BUILDER's efforts shall include, but not be limited to
establishing precautions to prevent its and its contractors' and subcontractors'
representatives, employees and agents from making, receiving, providing or
offering any payments, loans or other considerations or gifts or entertainment
of a material value. Material value shall be defined as anything having a value
of Two Hundred United States Dollars (U.S.$ 200) or more. BUILDER further agrees
that if it should be approached by anyone representing BUYER, its parent,
holding or affiliated companies who requests an item or gift of value, the
BUILDER will immediately notify BUYER. Breach of this provision shall be
considered a material breach of contract entitling BUYER to terminate the
Contract immediately upon written notice. In addition, BUILDER shall:
43
(a) 1. take no action on behalf of BUYER in the performance
of work or rendition of services under this Contract
where the conduct of operations hereunder would
subject either party hereto to liability or penalty
under any and all laws, rules, regulations or decrees
of any governmental authorities;
2. ensure that all invoices, final settlements, reports
and xxxxxxxx by BUILDER to BUYER reflect properly the
facts about all activities and transactions handled
for its accounts; and
3. notify BUYER promptly upon discovery of any instance
where BUILDER has not complied with the requirements
of this Paragraph 1(a).
If the violation of this Paragraph 1(a) occurred prior to the
date of this Contract and resulted directly or indirectly in
BUYER's consent to enter into this Contract with BUILDER,
BUYER may, at BUYER's sole option, terminate this Contract at
any time, and notwithstanding any other provision of this
Contract pay no compensation or reimbursement to BUILDER
whatsoever for any work done after the date of termination.
(b) observe the Foreign Corrupt Practices Act of the United States
of America which prohibits directly or indirectly making any
offer, payment, promise to pay or authorizing the payment of
any money or anything of value to any government official,
political party or any candidate for political office for the
purpose of 1) influencing any act or decision of any such
official or party in his, her or its official capacity, 2)
inducing such person to do or omit to do any act in violation
of the lawful duty of such official, 3) securing any improper
advantage or 4) inducing such official or party to use his,
her or its influence with any government to influence any act
or decision of such government in order to assist BUYER in
obtaining or retaining business.
2. Audit:
The BUYER shall have the right to audit BUILDER to verify it is in
compliance with the requirements of Article XXV. In addition, at all reasonable
times during the continuation of this Contract and for a period of two (2) years
thereafter, XXXXX's duly authorized representatives, including any third party
designated consultant, shall have access to, and the right to question BUILDER's
and its contractors' and subcontractors' and agents' personnel and to examine
their respective books, records, correspondence, instructions, plans, drawings,
receipts, vouchers, computer records, bid files of contractors and
subcontractors (both successful and unsuccessful), original estimates, change
order files, general ledger entries, payment vouchers and documentation of
business entertainment expenses pertaining to the services hereunder for the
purposes of auditing and verifying that the charges or costs presented by
BUILDER to BUYER for payment are in accordance with this Contract, or for any
other reasonable purpose. However, in no event shall BUYER have the right to
44
audit the composition of any lump sum prices, percentage overlays or fixed sums.
BUYER's representatives shall have the right to reproduce any of the aforesaid
documents for a period of two (2) years after the completion and acceptance or
termination of the work, or the fulfillment of any warranty obligations arising
under this Contract, whichever is later.
BUILDER shall ensure that any subcontract entered into in accordance
with the terms of this Contract confers upon the BUYER the same audit rights in
relation to such contractor or subcontractor as are conferred upon BUYER by this
provision.
ARTICLE XXVI - PUBLICITY RELEASES
BUILDER and its suppliers and subcontractors if any, shall not reveal
to others, except as required by law, through literature, brochures, or other
types of publicity releases any information regarding the work or its activities
or participation hereunder, without prior written approval from BUYER. The
content of any releases shall be approved in writing in advance by BUYER.
IN WITNESS WHEREOF, the parties hereto have caused this Contract to be
duly executed effective the day and year first above written.
SANTA FE INTERNATIONAL CORPORATION PPL SHIPYARD PTE. LTD.
(BUYER) (BUILDER)
By: By:
-------------------------------- -------------------------------
Name: X. Xxxxxxx Xxxxxx, Xx. Name:
-----------------------------
Title: President Title:
----------------------------
Witness: Witness:
--------------------------- --------------------------
Date Signed: Date Signed:
----------------------- ----------------------
45
EXHIBIT "A"
CONTRACT SPECIFICATIONS
Santa Fe International Corporation undertakes, upon the request of the
Securities and Exchange Commission, to file this Exhibit "A" that is not
included in the filing.
EXHIBIT "B"
CONTRACT DRAWINGS LIST
The Contract Plans that form a part of these Specifications are as follows:
DRAWING NO. ALT. TITLE
EXHIBIT "B" Page 1 of __
EXHIBIT "C"
HEALTH, SAFETY & ENVIRONMENTAL MANAGEMENT SYSTEM REQUIREMENTS
As a condition of the Contract, it is required that BUILDER provide and
use a Health, Safety & Environmental Management System (HSEMS). The HSEMS must
be in accordance with international industry standards and custom tailored for
BUILDER's use. If not already implemented, BUILDER must provide a formal plan
outlining how HSEMS will be implemented into the shipyard. This implementation
plan must cover all personnel ranging from upper management to those working on
the shop floor, and must cover all BUILDER employees and third party personnel.
This is to be achieved by use of a training program which ensures that all
personnel know of and understand HSEMS.
Further, HSEMS must have standards and goals which can be reported upon
and audited, both by BUILDER and by third parties. Further, HSEMS must be
available in both Chinese and English languages, and other languages depending
upon the makeup of the workforce.
Specifically, HSEMS must have the following components:
1. A housekeeping program to eliminate such problems as electric lines,
welding cables and oxygen and acetylene hoses being draped haphazardly
from one level to the next in the work area and the protection thereof.
The housekeeping program should also address other items such as
scaffold piping, metal off-cuts and general debris in walkways.
2. A scaffolding program which will be to international standards covering
erection and inspection. The scaffolding program should also cover all
equipment such as planking, tubing, clips, kick-boards and fastening
items.
3. A fall protection program which provides fall protection procedures and
training for all relevant BUILDER personnel and third party personnel.
It should also cover required fall protection equipment such as
harnesses, lanyards, inertia reels, barricades and signage. This
program should be covered by a documented inspection system covering
fall protection equipment.
4. A Permit to Work (PTW) system in accordance with international
standards which will include training for all BUILDER and third party
personnel. The PTW system will include but not be limited to: Hot Work
Permits, Electrical and Mechanical Isolation Permits, Working at Height
Permits, High Pressure Work Permits, Radioactive Source Usage Permits
and Confined Space Entry Permits.
EXHIBIT "C" Page 1 of 2
5. A fire protection program adequate to protect all personnel and
equipment. The fire protection program shall include basic firefighting
training for all BUILDER and third party personnel which addresses:
(a) Basic use and knowledge of fire extinguishers and other
general firefighting equipment, and
(b) Standard procedures during fire emergencies.
6. An emergency drills program which will include training to all BUILDER
and third party personnel.
7. A lifting equipment inspection program which will be subject to audit,
and utilizes a period relevant color-coding system.
8. A safety meeting system for all BUILDER and third party personnel which
shall (i) be auditable and include weekly safety meetings, daily
pre-tower/pre-task safety meetings, and (ii) encompass recording and
posting of meeting minutes on notice boards in pertinent locations
within the shipyard including work and cafeteria areas.
9. A safety and informational signage program with the signs being to
internationally recognized standards and/or utilizing multi-language
and pictograms as required.
10. An identification system (ID) for all BUILDER and third party personnel
which shall include numbered photo ID tags and color-coding readily
identifying personnel by their company, position and trade.
11. A formal induction system for all BUILDER new-hire employees, visitors
and third party personnel. Induction training to be provided before
admittance to the shipyard work areas.
12. Provision of adequate first response medical facilities on a 24-hour
basis.
13. Provision of personal protective equipment (PPE) to a recognized
international standard for all BUILDER and third party personnel. PPE
to include the provision and use of hard hats, safety glasses, steel
toe safety footwear, work gloves and cover-alls/appropriate trousers
and work shirts.
14. An internal auditing program to monitor and record HSEMS performance
and identify deficiencies. This program to include statistical data
such as monthly man hours, lost time injury reporting, etc. The
auditing program shall also include and record physical audits of the
site operations.
EXHIBIT "C" Page 2 of 2
EXHIBIT "D"
SCHEDULE OF LABOR AND MATERIAL RATES
Schedule for determining labor, material and equipment prices for work over and
above work called for in the Contract to which this Exhibit is attached,
performed by BUILDER on a "Time and Material" basis or when "hired out" to
BUYER:
1. GENERAL CONDITIONS & NOTES FOR SHIPYARD'S PERSONNEL - EXPLANATORY NOTES
1.1 All personnel and services mentioned in this Schedule of Rates
are subject to their/its availability at the time of request.
1.2 All personnel's rates are based on the labour law of Singapore
and are subject to changes which may result from changes
stipulated in the labour law.
1.3 For all personnel supplied, working on daily rate, they shall
be supervised by the Client.
1.4 The daily rate shall only apply to personnel working in PPL
Yard. In the event when the Client requires personnel to work
outside of PPL Yard, the rate shall be discussed.
For all personnel working Overseas, the rate shall be 2 1/2
times of the hourly rate given hereto.
Mobilisation/demobilization, lodging, accommodation, etc.
shall be for Client's responsibility and account.
1.5 The minimum hire period shall be 8 normal working hours per
day for Skilled and Unskilled Labour.
Normal Working Day
Monday to Friday
0730 hr - 1130 hr
1130 hr - 1215 hr (Lunch)
1215 hr - 1615 hr
For any time spent working on instruction outside of the
standard normal hours, the following rates shall be applied:
EXHIBIT "D" Page 1 of 10
a. Overtime
1615 hr - 2100 hr Charge at 1.5 times
2100 hr - 2400 hr Charge at 2.0 times
0000 hr - 0800 hr (next day) Charge at 3.0 times
b. Saturday
0730 hr - 1130 hr ) Charge at normal time
1130 hr - 1300 hr (Lunch) ) Charge at 1.5 times
1215 hr - 1615 hr ) normal rate
1615 hr - 2100 hr ) Charge at 2.0 times
) normal rate
2100 hr - 0800 hr (next day) ) Charge at 3.0 times
) normal rate
c. Sunday/Public Holidays
0730 hr - 1130 hr ) Charge at 2.0 times of
1130 hr - 1215 hr (Lunch) ) normal rate
1215 hr - 1615 hr )
1615 hr - And above ) Charge at 3.0 times
(next day) ) normal rate
1.6 The rates shall be applied from the time the personnel is
committed to the work or service until released, including
mobilization, standby or demobilization.
1.7 Where work being carried out is suspended due to bad weather
or technical reasons or conditions beyond the Shipyard's
control, the rates shall continue to apply throughout such
suspension.
1.8 The minimum number of personnel supply is two (2) men. Where
labour supply exceeds six (6) men, a supervisor shall be
required. This supervisor shall take instructions from the
Client and the Client shall be responsible for any work
carried out by the labour supplied.
1.9 The required minimum termination notice for personnel supply
shall be twenty-four (24) hours.
EXHIBIT "D" Page 2 of 10
1.10 PPL Yard or premises means PPL's and Jurong's shipyard
facilities in Singapore.
SCHEDULE OF RATES FOR PERSONNEL
CATEGORY HOURLY RATE(S$)
--------------------------------------------------------------------------------
A. Management:
1. Superintendent/Engineer 90.00
B. Supervisory:
1. Safety Officer/Fireman 45.00
2. Technician 45.00
3. Draughtsman 45.00
4. Q.C. Technician 45.00
5. Xxxxxxx (All Trades) 45.00
6. Assistant Engineer 60.00
C. Skilled Labour:
1. Welder 30.00
2. Pipe Fitter/Steel Fitter 30.00
3. HVAC Fitter 30.00
4. Mechanical Fitter 30.00
5. Electrician 30.00
6. Machinist 30.00
7. Crane Operator 30.00
8. Fork-Lift Driver 30.00
9. Watchman 30.00
10. Xxxxxxxxx 30.00
11. Painter 30.00
12. Cutter 30.00
13. Material Handler 30.00
14. Sandblaster 30.00
15. Rigger/Xxxxxx 30.00
16. Store-Keeper 30.00
17. Store Assistant 20.00
D. Unskilled Labour:
1. General Worker/Helper 18.00
2. Cleaner 18.00
3. Grinder 18.00
4. Oiler 18.00
EXHIBIT "D" Page 3 of 10
NOTE: Any tradesman not specified in this Schedule of Rates shall be
quoted separately on request.
2. GENERAL CONDITIONS & NOTES FOR SHIPYARD'S EQUIPMENT - EXPLANATORY NOTES
2.1 All equipment and services mentioned in this Schedule of Rates
are subject to their/its availability at the time of request.
2.2 In the event of a necessity to hire an equipment from an
outside source, all mobilization and demobilization costs
shall be for the Client's account.
2.3 Should any specialist or extra piece of equipment be required
to be hired in for an operation on Rental Rate, such costs
shall be recoverable from the Client at cost plus 15% service.
2.4 The equipment's rates quoted are inclusive of all fuel and
refueling, spare parts, maintenance, consumables, use of
existing slings and shackles (if available).
2.5 All rates exclude operators.
2.6 Minimum hire period shall be four (4) hours unless specified.
2.7 The Rates shall be applied from the time the equipment is
committed to the work or service until released.
2.8 Where work being carried out on a Hourly or Daily Rate basis
is suspended due to bad weather, or technical reasons or
conditions beyond the Shipyard's control, the rates will
continue to apply throughout such suspension period.
2.9 In case any preparation/modification work is required to the
existing piece of equipment to perform the work specified by
the Client, the hire rate shall be applied whilst this
preparation/modification is under way, such labour and
equipment involved to accomplish this will be charged under
the appropriate Schedule of Rates.
2.10 All prices quoted are for work to be carried out within PPL's
premises only.
EXHIBIT "D" Page 4 of 10
2.11 All cut-off/remnant/etc. of steel materials generated from all
repair/modification/conversion works shall be for PPL's
property. PPL shall be responsible to clear off such steel
materials.
2.12 PPL reserves the right to alter these prices in accordance
with any future material cost variations.
2.13 All prices quoted are based on Normal Working Hours:
Monday to Friday: 0730-1130 hr
1130-1215 hr (Lunch)
1215-1615 hr
Saturday: 0730-1130 hr
2.14 PPL Yard or premises means PPL's or Jurong's shipyard
facilities in Singapore.
EXHIBIT "D" Page 5 of 10
SCHEDULE OF RATES FOR CRANES
DESCRIPTION CAPACITY HOURLY RATE (S$)
--------------------------------------------------------------------------------
Types of Cranes:
Crawler/Truck Crane 20-50 Ton 200.00
Link Belt Crawler Crane 80-100 Ton 300.00
Link Belt Crawler Crane 150 Ton 600.00
Manitowoc Crawler Crane 200 Ton 1,000.00
Manitowoc Crawler Crane 350 Ton 1,250.00
Manitowoc Platform Xxxxxx 600 Ton On Application
NOTE: ALL OVERTIME ON CRANES WILL BE CHARGED AT FLAT HOURLY RATE.
--------------------------------------------------------------------------------
SCHEDULE OF RATES FOR EQUIPMENT
TYPE OF EQUIPMENT DAILY RATE(S$)
--------------------------------------------------------------------------------
Air Compressor (Portable) - Diesel Driven
125 cfm 70.00
250 cfm 225.00
600 cfm 360.00
600 cfm (electric) 300.00
EXHIBIT "D" Page 6 of 10
Welding Set
Welding Transformer/Rectifier 60.00
Fork-Lift
Above 3.5 Ton 260.00
Up to 3.5 Ton 195.00
Gensets:
350 Kva (excluding supply of diesel) 450.00
Low Loader: 420.00
3. GENERAL CONDITIONS & NOTES FOR SHIPYARD SERVICES
3.1 All prices quoted are in Singapore Dollars and based on Normal
Working Hours:
Monday to Friday: 0730 hr - 1130 hr
1130 hr - 1215 hr (Lunch)
1215 hr - 1615 hr
Saturday: 0730 hr - 1130 hr
3.2 All prices quoted are for work to be carried out in PPL's
premises only.
3.3 PPL reserves the right to alter these prices in accordance
with any future wage or material cost variation.
3.4 PPL Yard or premises means PPL's or Jurong's shipyard
facilities in Singapore.
EXHIBIT "D" Page 7 of 10
YARD SERVICES
--------------------------------------------------------------------------------
1. Harbour Tug Services (between 200 to 350 HP):
Per Call: a. Mobilisation S$150.00
b. Demobilisation S$150.00
c. In operation (per tug per hr) S$150.00
d. Minimum operating charge S$450.00
2. Wharfage Per Day:
Wharf-Front Shore-Line
a. Jack-Up Rig/Accomodation Unit S$1,000.00 S$350.00
b. Semi-Submersible S$1,350.00
c. Ship/Tugboat S$5.00/m length of LOA per day
(minimum charge of S$500/day)
x. Xxxxx S$4.00/m length of LOA per day
(minimum charge of S$400/day)
3. Loading and unloading of cargo/ S$100/truck (within the yard)
equipment/etc. charges (alongside to a maximum of S$1,000/day
PPL's wharf or within the yard)
4. Mooring and Unmooring
EXHIBIT "D" Page 8 of 10
a. Jack-Up Rig S$800.00/moor or unmoor
b. Semi-Submersible/Ship S$800.00/moor or unmoor
x. Xxxxx S$400.00/moor or unmoor
5. Water Supply
a. Fireline S$100.00/hose per day
b. Fresh Water
(below 200 m.ton per month) S$7.50/m.ton
(above 200 m.ton per month) S$10.00/m.ton
c. Labour Charges for connection S$300.00/operation
and disconnection of hose
6. Electricity Supply
a. Shore power for 50 Hz only S$0.80/kwh
b. Labour Charges for connection/ S$500/operation
disconnection of cable
7. Gas Free
a. Governmental Chemist Cost + 15% service charge
b. Shipyard Safety Personnel S$200/day
8. Garbage Disposal S$200/day
9. General Gate Security S$50/man per day
10. Spacer Barge (PPL's own spacer barge) S$150/day
11. Gangway S$100/day
12. Storage Per Month
a. Ordinary open space S$4.00/sq.m.
b. Open hard-core area S$5.00/sq.m.
EXHIBIT "D" Page 9 of 10
c. Open hard-core area
c/w gantry crane S$6.00/sq.m.
d. Covered workshop S$7.00/sq.m.
e. Warehouse S$25.00/sq.m.
f. Office space S$43.00/sq.m.
EXHIBIT "D" Page 10 of 10
EXHIBIT "E"
PROTOCOL OF DELIVERY AND ACCEPTANCE
FOR HULL NO. P.2004
KNOW ALL MEN BY THESE PRESENTS:
That PPL Shipyard Pte. Ltd., ("BUILDER") has constructed and sold and
by these presents does grant, convey and deliver to _________________________
("BUYER") all right, title, and interest to the semi-submersible drilling vessel
bearing BUILDER'S HULL NO. P.2004 (the "Vessel") pursuant to a Contract for the
Construction and Sale of One Semi-Submersible Drilling Unit, effective April 11,
2001, as currently amended, and all schedules thereto (the "Contract") and that
the undersigned, as a duly authorized representative of BUYER, does hereby on
its behalf accept delivery of the Vessel as aforesaid, subject to the following.
Nothing contained in this document shall in any way affect, diminish,
impair or prejudice any of the obligations, undertakings, guarantees, warranties
or liabilities of BUILDER pursuant to the provisions of the Contract, as
currently amended, which are applicable after delivery.
Signed at __________________________________________________ at
________________hours on _____________________, 20__.
PPL SHIPYARD PTE. LTD. _____________________________
(BUILDER) (BUYER)
By: By:
------------------------------- --------------------------
Name: Name:
----------------------------- ------------------------
Title: Title:
---------------------------- -----------------------
Witness: Witness:
-------------------------- ---------------------
EXHIBIT "E" Page 1 of 1
EXHIBIT "F"
PERFORMANCE GUARANTEE
CONTRACT FOR THE CONSTRUCTION AND SALE
OF A SEMI-SUBMERSIBLE DRILLING UNIT
(HULL NO. P.2004)
DATED ___________________, 2001
THIS PERFORMANCE GUARANTEE AGREEMENT (hereinafter referred to as the
"Guarantee") is by and between SEMBCORP MARINE LIMITED whose registered office
is located at ________________________________________ (hereinafter referred to
as "Guarantor") of the one part and SANTA FE INTERNATIONAL CORPORATION whose
registered office is located at 0000 XXX Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx
00000-0000 (hereinafter referred to as "Company") of the second part.
WHEREAS
The Guarantor is the owner of shares of PPL SHIPYARD PTE. LTD.
(hereinafter referred to as the "Subsidiary") which is to supply certain goods
and/or services under a
Contract for the Construction and Sale of a
semi-submersible drilling unit (Hull No. P.2004) dated as of 11 April 2001 with
Company (hereinafter referred to as the "Contract").
Company is desirous of Guarantor guaranteeing the due and proper
performance of the Subsidiary's obligations and duties under said Contract and
otherwise, and Guarantor is willing to grant the Guarantee hereinafter provided.
NOW IT IS HEREBY AGREED as follows:
1. In consideration of Company entering into said Contract with the
Subsidiary, Guarantor hereby covenants and agrees unconditionally with
Company, its successors and assigns that:
(a) The Subsidiary shall properly, diligently and in good time
observe the provisions of and perform and discharge each of
its obligations contained in said Contract and any supplements
or amendments thereto, and shall supply all the goods and
services named therein to the standard of workmanship, skill,
care and safety (and to the time-scales) therein expressly
laid down, or insofar as not expressly laid down, then to the
standards demanded by the proper exercise of its skills as a
competent and workmanlike contractor proceeding with all due
expedition.
(b) If the Subsidiary defaults in whole or in part in any of the
foregoing obligations, Guarantor shall forthwith remedy any
remediable breaches and promptly undertake, and diligently
perform and discharge the foregoing obligations as if
Guarantor were the original obligant from the outset, and all
on the same terms and conditions as in the Contract.
EXHIBIT "F" Page 1 of 3
(c) Guarantor shall pay to Company on demand all monies due and
owing by the Subsidiary to Company under the Contract or
pursuant to any claim made by Company relating to or arising
out of the Contract.
(d) This Guarantee shall be a primary obligation of Guarantor and
accordingly Company shall not be obliged before enforcing this
Guarantee to take any action in any court against the
Subsidiary, to make any claim against or any demand of the
Subsidiary, to enforce any other security held by it in
respect of the obligations of the Subsidiary under the
Contract or to exercise any diligence against the Subsidiary.
(e) Guarantor hereby agrees that its obligations hereunder shall
not be in any way discharged or impaired by any time or
indulgence granted to the Subsidiary in relation to all or any
of the obligations of the Subsidiary under the Contract or any
variation of or supplement or amendment to the Contract
whether or not Guarantor shall be party to or cognizant of the
same or by any other circumstance which would or might (but
for this provision) constitute a legal or equitable discharge
or defense of a guarantor.
(f) This Guarantee shall be a continuing guarantee which shall be
and continue in full force and effect irrespective of the
legality, validity or enforceability of any other provision of
the Contract and notwithstanding the dissolution of the
Subsidiary or any change in its status, function, control or
ownership until all obligations to be performed or discharged
by the Subsidiary under the Contract the performance or
discharge of which are guaranteed by Guarantor as aforesaid
have been performed and discharged and shall be in addition to
and not in substitution for or derogation of any other
security held by any person for whose benefit this Guarantee
is given in respect of the obligations of the Subsidiary under
the Contract.
(g) Guarantor hereby agrees as a primary obligation to defend,
indemnify and hold harmless Company and its successors and
assigns, including the vessel to be built pursuant to the
Contract and all other vessels in the same or associated
ownership, from and against liability for any loss incurred by
them as a result of the Contract being or becoming void,
voidable or unenforceable for any reason wholly attributable
to the Subsidiary the amount of such loss being the amount
which they would otherwise have been entitled to recover from
the Subsidiary.
2. This Guarantee shall be in addition to, and not in substitution for,
any rights or remedies that Company may have against the Subsidiary
arising under said Contract, or otherwise.
EXHIBIT "F" Page 2 of 3
3. This Guarantee shall be valid throughout the term of the Contract
including any extensions thereof, and for a period of eighteen (18)
months following the actual date of delivery and acceptance of the
vessel to Company as contemplated by the Contract.
4. This Guarantee shall be governed by English law excluding, however, any
of its conflicts of law rules or other provisions which may refer to
the laws of another jurisdiction. Any claim, dispute or difference
arising out of this Guarantee shall be finally resolved in accordance
with the provisions of Article XVII - Dispute Resolution of the
Contract.
For the purposes of any proceedings pursuant to the preceding
paragraph, the Guarantor hereby irrevocably appoints the following as
its agent within England for the service of process:
-----------------------------------------
-----------------------------------------
-----------------------------------------
-----------------------------------------
5. This Guarantee is effective from the effective date of the Contract
irrespective of the date or dates of execution hereof.
Guarantor warrants its power to enter into this Agreement and that it
has obtained all necessary approvals to do so.
IN WITNESS WHEREOF Xxxxxxxxx has executed this Guarantee on the _____
day of __________________, 2001.
Signed and sealed for and on behalf of SEMBCORP MARINE LIMITED
Signature:
--------------------------------------
Name (Printed):
--------------------------------------
Position:
--------------------------------------
Date:
--------------------------------------
Witnessed by:
--------------------------------------
Name (Printed):
--------------------------------------
[CORPORATE SEAL]
EXHIBIT "F" Page 3 of 3
EXHIBIT "G"
IRREVOCABLE
STAND-BY LETTER OF CREDIT
NO. _________________________________
Santa Fe International Corporation
0000 XXX Xxxxxxx
Xxxxx 0000
Xxxxxx, XX 00000-0000
Dear Sirs:
We hereby establish this Irrevocable Stand-by Letter of Credit in your
favor in connection with the Contract for the Construction and Sale of One
Semi-Submersible Drilling Unit, Hull No. P.2004, effective April 11, 2001,
between PPL Shipyard Pte. Ltd. and you for the account of PPL Shipyard Pte. Ltd.
up to the aggregate amount of Eight Million Six Hundred Forty-Eight Thousand
United States Dollars (U.S.$8,648,000) available for payment against your draft
marked with the above credit number accompanied by a certificate (the "Default
Certificate") signed by you reading as follows:
"Pursuant to your Letter of Credit No. (#####) dated (MM DD YY), in
favor of Santa Fe International Corporation ("Buyer"), we hereby
certify that the amount of the attached draft ($$$$$) is due and
payable to Buyer in connection with the Contract for the Construction
and Sale of One Semi-Submersible Drilling Unit, Hull No. P.2004,
effective April 11, 2001."
The expiry date ("Expiry Date") of this Letter of Credit shall be
November 25, 2005, or the 380th day after the actual date of delivery and
acceptance of the Drilling Unit, whichever is the earlier, provided that if the
380th day after the actual date of delivery and acceptance of the Drilling Unit
does not occur by October 25, 2005, and PPL Shipyard Pte. Ltd. has not obtained
an extension of this Stand-by Letter of Credit, you may consider the full amount
of this Stand-by Letter of Credit to be due and payable. The evidence of actual
date of delivery and acceptance of the Drilling Unit shall be by means of
presentation of the signed and dated PROTOCOL OF DELIVERY AND ACCEPTANCE as
attached hereto.
We hereby agree with the drawers, endorsers and bonafide holders of all
drafts drawn under and in compliance with the terms of this Stand-by Letter of
Credit that such drafts will be duly honored upon presentation to drawee on or
before the Expiry Date at our offices located at _________________________,
U.S.A. Partial draws are allowed with total drawings not to exceed the aggregate
amount of this Letter of Credit.
EXHIBIT "G" Page 1 of 2
Except as otherwise expressly stated herein, this Letter of Credit is
subject to the Uniform Customs and Practice for Documentary Credits (1993
Revision), International Chamber of Commerce Publication No. 500 (hereinafter
called the "UCPDC") and shall be supplementally governed by the laws of New
York, U.S.A. to the extent that they do not conflict with the UCPDC.
EXHIBIT "G" Page 2 of 2
